-1-

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UNPUBLISHED

August 14, 2018

v No. 334692

Ingham Circuit Court

KEVIN ROBERT SMITH, LC No. 15-001023-FC

Defendant-Appellant.

Before: CAMERON, P.J., and METER and BORRELLO, JJ.

BORRELLO, J. (dissenting).

Review of this matter has led me to conclude that the primary purpose for introduction of 

the majority of the testimony offered by Detective Harrison and Dr. Guertin was for the improper 

purpose of vouching for the credibility of the victims in this matter. Additionally, I find that 

failure by trial counsel to object to the numerous hearsay statements of Harrison and Guertin,

coupled with counsel’s failure to object to the majority of their improper vouching constituted 

ineffective assistance of counsel and denied defendant a fair trial. Accordingly, I respectfully 

dissent from the majority’s analysis and their legal conclusions. I would reverse defendant’s 

convictions and grant defendant a new trial. 

I. SHAW IS RETROACTIVE

In this case, defendant’s trial occurred over the course of eight days from May 31 to June 

17, 2016. This Court’s decision in Shaw was issued on June 14, 2016. Regarding the 

application of Shaw in the instant matter, the majority asserts that because the Shaw opinion was 

issued during trial, “it would be difficult to hold counsel responsible for failing to object on the 

basis of Shaw” and “it did not fall below an objective standard of reasonableness for counsel to 

fail to object on the basis of Shaw.” However, in Shaw, this Court did not announce a “new rule”

by holding that the defendant was denied the effective assistance of counsel based on his trial 

counsel’s failure to object to inadmissible hearsay testimony that amounted to improper 

bolstering of the complainant’s credibility, and there is accordingly no question that this holding 

has complete retroactive effect to matters, such as the instant one, still pending on direct 

appellate review. Rather, this Court’s decision in Shaw involved the issue whether the defendant 

was denied his right to the effective assistance of counsel, guaranteed by both the United States 

and Michigan Constitutions. Shaw, 315 Mich App 668, 671-672; 892 NW2d 15 (2016); US 

Const, Am VI; Const 1963, art 1, § 20. When a right protected by the United States Constitution 
-2-

is at issue, federal retroactivity rules are implicated. Harper v Virginia Dep’t of Taxation, 509 

US 86, 89, 100; 113 S Ct 2510; 125 L Ed 2d 74 (1993) (explaining that the federal retroactivity 

doctrine controls over state-law retroactivity principles with respect to matters of federal law). 

However, principles of retroactivity set forth by the Michigan Supreme Court are also implicated 

in this instance. “A state may accord broader effect to a new rule of criminal procedure than 

federal retroactivity jurisprudence accords.” People v Maxson, 482 Mich 385, 392; 759 NW2d 

817 (2008), citing Danforth v Minnesota, 552 US 264, 287-288; 128 S Ct 1029; 169 L Ed 2d 859 

(2008). Moreover, Shaw is a decision by this Court that also involved application of purely 

state-law principles such as the Michigan Rules of Evidence, 315 Mich App at 672-674, and the 

retroactivity of judicial decisions interpreting Michigan law is determined under Michigan’s own 

state-specific retroactivity standards. “A state in defining the limits of adherence to precedent 

may make a choice for itself between the principle of forward operation and that of relation 

backward. . . . The choice for any state may be determined by the juristic philosophy of the 

judges of her courts, their conceptions of law, its origin and nature.” Great Northern R Co v 

Sunburst Oil & Refining Co, 287 US 358, 364-365; 53 S Ct 145; 77 L Ed 360 (1932); see also 

Harper, 509 US at 100 (acknowledging the “freedom state courts . . . enjoy to limit the 

retroactive operation of their own interpretations of state law”); People v Barnes, ___ Mich ___, 

___; ___ NW 2d ___ (2018) (stating that both federal and state rules govern in the retroactivity 

context). Accordingly, principles of both federal and state law are relevant to resolving the issue 

whether Shaw is retroactive.

Under federal law, the United States Supreme Court has recognized the long-standing 

general rule that judicial decisions have retroactive effect. Harper, 509 US at 94. More 

specifically with respect to rights protected by the United States Constitution in the criminal 

context, the United States Supreme Court has held “that a new rule for the conduct of criminal 

prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review 

or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with 

the past.” Griffith v Kentucky, 479 US 314, 316, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987). 

Under Michigan law, “[t]he general rule is that judicial decisions are to be given complete 

retroactive effect.” People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996) (quotation marks 

and citation omitted), cert den sub nom Doyle v Michigan, 519 US 873; 117 S Ct 192; 136 L Ed 

2d 129 (1996). The Michigan Supreme Court has stated that retroactive application of a judicial 

decision is “problematic” if the decision is “ ‘unexpected’ and ‘indefensible’ ” in light of existing 

law. Id. (citation omitted). “Complete prospective application has generally been limited to 

decisions which overrule clear and uncontradicted case law.” Id. (quotation marks, citation, and 

bracket omitted); accord People v Shami, 501 Mich 243, 257 n 34; 912 NW2d 526 (2018). To 

determine the retroactivity of a new rule announced in a judicial decision, our Supreme Court 

employs a three-part test that considers “(1) the purpose of the new rule[]; (2) the general 

reliance on the old rule, and (3) the effect of retroactive application of the new rule on the 

administration of justice.” People v Sexton, 458 Mich 43, 60-61; 580 NW2d 404 (1998), reh den 

459 Mich 1203 (1998); cert den sub nom Young v Michigan, 525 US 1126; 119 S Ct 912; 142 L 

Ed 2d 909 (1999), reh den 526 US 1095; 119 S Ct 1514; 143 L Ed 2d 665 (1999).

However, our Supreme Court first considers the threshold question whether a holding in a 

judicial decision constitutes a “new” rule before it applies the three-part retroactivity test: 

“Before any question of the retroactive application of an appellate decision arises, it must be 

clear that the decision announces a new principle of law.” People v Phillips, 416 Mich 63, 68; 
-3-

330 NW2d 366 (1982) (emphasis added). “A rule of law is new for purposes of resolving the 

question of its retroactive application . . . either when an established precedent is overruled or 

when an issue of first impression is decided which was not adumbrated by any earlier appellate 

decision.” Id. If the holding in a judicial decision is merely the product of applying existing 

statutory authority and established precedent to the facts of the case, then that holding does not 

constitute the resolution of an issue of first impression that was not clearly foreshadowed. Id. at 

73, 75. The holding of a judicial decision has retroactive effect if that holding did not announce 

a new rule. Doyle, 451 Mich at 95, 101, 103-104, 113; Phillips, 416 Mich at 65-66, 75. “If a 

rule of law announced in an opinion is held to operate retroactively, it applies to all cases still 

open on direct review.” W A Foote Mem Hosp v Michigan Assigned Claims Plan, 321 Mich App 

159, 176; 909 NW2d 38 (2017).

In Shaw, this Court held that the defendant, who had been convicted of nine counts of 

first-degree criminal sexual (CSC-I) conduct and acquitted of one additional count of CSC-I, 

received ineffective assistance of counsel based on his trial counsel’s failure to object to multiple 

hearsay statements that essentially bolstered the complainant’s credibility and that came in at 

trial through the testimony of the complainant’s family members, the police detective who 

conducted a forensic interview of the complainant, and the doctor who conducted a medical 

examination of the complainant. 315 Mich App at 671-674, 676-678. The hearsay statements 

recounted the complainant’s out-of-court descriptions of the sexual abuse allegedly committed 

by the defendant. Id. at 673-674, 676.

In reaching the conclusion that the failure to object to these statements constituted 

deficient performance that prejudiced the defendant such that defendant was denied his right to 

the effective assistance of counsel, the Shaw Court applied Michigan Rules of Evidence related 

to hearsay, id. at 672-674, citing MRE 801, MRE 802, and MRE 803(4), as well as the rule that 

“ ’[i]n a trial where the evidence essentially presents a one-on-one credibility contest between the 

victim and the defendant, hearsay evidence may tip the scales against the defendant, which 

means that the error is more harmful,’ ” Shaw, 315 Mich App at 673, quoting People v Gursky, 

486 Mich 596, 620-621; 786 NW2d 579 (2010). Furthermore, the Shaw Court was concerned 

about how the testimony of the detective and the doctor amounted to bolstering the credibility of 

the complainant in a case where the complainant’s credibility was of central importance. Shaw, 

315 Mich App at 674, 676-678. However, the Shaw Court did not actually cite any specific legal 

authority for the proposition that a witness may not vouch for the credibility of another witness; 

the Shaw Court merely assumed this principle. Id.

With respect to the detective, the Shaw Court noted that she testified about the 

complainant’s statements and further testified “extensively” about how she was able to 

“confirm[] numerous background facts that the complainant reported to her,” how she was able 

to “confirm the veracity” of statements made by the complainant, and how she was able to 

corroborate the complainant’s statements before charges were filed. Id. at 676. The Shaw Court 

reasoned that the detective effectively “concluded that the complainant was credible and so 

advised the jury.” Id. With respect to the doctor who examined the complainant, the Shaw Court 

noted that the doctor “recounted in detail the complainant’s statements to him about the abuse,”

testified that he believed the complainant’s allegations on the basis of her medical history, and 

testified that he “believed that his physical findings were consistent with someone who had 

suffered child sexual abuse.” Id. at 674, 678. The Shaw Court concluded that the defendant’s 
-4-

trial counsel performed deficiently by failing to object to the inadmissible hearsay testimony of 

the detective and the doctor because there was no reasonable basis to conclude that it would be 

strategically advantageous to permit highly damaging hearsay testimony in order to point out 

minor factual inconsistencies in the complainant’s statements. Id. at 675-677, 677 n 3. Finally, 

the Shaw Court concluded that there was a reasonable probability that outcome of the trial would 

have been different had the defendant’s trial counsel objected to this testimony because the 

complainant’s version of events was repeatedly presented to the jury and was done so by the 

detective and the doctor who essentially gave the complainant’s story “an official stamp of 

approval” and bolstered her credibility. Id. at 677-678.

These conclusions were the result of applying pertinent Michigan Rules of Evidence and 

established precedent involving issues of hearsay, improper vouching for the credibility of 

another, and ineffective assistance of counsel. Although the Shaw Court did not provide a 

citation for the principle that a witness may not vouch for the credibility of another witness, this 

rule is nonetheless well established. Our Supreme Court has made clear that “it is improper for a 

witness or an expert to comment or provide an opinion on the credibility of another person while 

testifying at trial” because “[s]uch comments have no probative value” and “do nothing to assist 

the jury in assessing witness credibility in its fact-finding mission and in determining the 

ultimate issue of guilt or innocence.” People v Musser, 494 Mich 337, 349; 835 NW2d 319 

(2013) (quotation marks and citation omitted). Moreover, “child-sexual-abuse cases present 

special considerations given the reliability problems created by children’s suggestibility.” Id. at 

357 (quotation marks and citation omitted). And our Supreme Court has “condemned opinions 

related to the truthfulness of alleged child-sexual-abuse complainants,” specifically noting that 

“in cases hinging on credibility assessments, . . . the jury is often ‘looking to “hang its hat” on 

the testimony of witnesses it views as impartial.’ ” Id. (citation omitted).

Because the Shaw Court merely applied established law to the facts of the case in 

reaching the conclusions discussed above, its holding related to those issues has retroactive effect 

under the federal retroactivity standard. Griffith, 479 US at 324 & n 10. For the same reason, its 

holding did not constitute the resolution of an issue of first impression that was not clearly 

foreshadowed under the Michigan retroactivity standard. Phillips, 416 Mich at 68. The above 

conclusions reached by the Shaw Court also did not involve the overruling of established 

precedent. Accordingly, a new rule was not announced, and this holding of Shaw has retroactive 

effect under state law as well. Doyle, 451 Mich at 95, 101, 103-104, 113; Phillips, 416 Mich at 

68.

Further, the fact that Shaw was decided during the course of defendant’s trial does not 

negate the applicability of Shaw to this Court’s resolution of the instant case. It was already well 

established that a witness cannot vouch for the credibility of another witness. Musser, 494 Mich 

at 349. While defense counsel may not have been able to specifically cite Shaw in objecting to 

testimony that occurred during defendant’s trial before the decision in Shaw was issued, defense 

counsel certainly could have objected to testimony that constituted improper vouching for the 

credibility of other witnesses. Thus, the issue is really whether defense counsel was 

constitutionally ineffective by failing to object to the testimony of Harrison and Guertin on the 

ground of improper vouching, not whether he was ineffective by failing to object on the ground 

of “Shaw.”
-5-

II. IMPROPER VOUCHING

There can be little doubt that it is difficult to show that a conviction must be reversed 

based on a claim of ineffective assistance of counsel. In order to prevail on appeal, a defendant 

must demonstrate (1) that counsel’s performance was deficient and (2) that the defense was 

prejudiced by counsel’s deficient performance. Strickland v Washington, 466 US 668, 687; 104 

S Ct 2052; 80 L Ed 2d (1984), reh den 467 US 1267; 104 S Ct 3562; 82 L Ed 2d 864 (1984); 

Riley, 468 Mich at 140. Satisfying the first prong requires a defendant to show that counsel’s 

performance fell below an objective standard of reasonableness under prevailing professional 

norms. Strickland, 466 US at 688; Riley, 468 Mich at 140. Satisfying the second prong requires 

a defendant to show that but for counsel’s unprofessional errors, there is a reasonable probability 

that the result of the proceeding would have been different. Strickland, 466 US at 694; see also 

People v Trakhtenberg, 493 Mich 38, 55-56; 826 NW2d 136 (2012). “A reasonable probability 

is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694.

A defendant making an ineffective assistance of counsel claim “must overcome the 

strong presumption that counsel’s performance was born from a sound trial strategy.” 

Trakhtenberg, 493 Mich at 52. However, “a court cannot insulate the review of counsel’s 

performance by calling it trial strategy.” Id. Trial strategy “in fact must be sound, and counsel’s 

decisions as to it objectively reasonable.” People v Douglas, 496 Mich 557, 585; 852 NW2d 587 

(2014). When reviewing an ineffective assistance claim, “the ultimate focus of inquiry must be 

on the fundamental fairness of the proceeding whose result is being challenged,” and “[i]n every 

case the court should be concerned with whether, despite the strong presumption of reliability, 

the result of the particular proceeding is unreliable because of a breakdown in the adversarial 

process that our system counts on to produce just results.” Strickland, 466 US at 696.

In this case, the primary concern to address regarding the testimony of Harrison is 

whether she impermissibly vouched for the credibility of the two alleged victims and their 

mother, and, whether she was able to do so without objection.

“It is ‘[t]he Anglo–Saxon tradition of criminal justice . . . [that] makes jurors the judges 

of the credibility of testimony offered by witnesses.’ ” Musser, 494 Mich at 348-349 (citation 

omitted). Because the task of judging the credibility of witnesses’ testimony is one that is 

reserved for the jury, “it is improper for a witness or an expert to comment or provide an opinion 

on the credibility of another person while testifying at trial.” Musser, 494 Mich at 349. This 

concept is well established in Michigan jurisprudence. See, e.g., People v Buckey, 424 Mich 1, 

17; 378 NW2d 432 (1985) (noting the general rule that it is “improper for a witness to comment 

or provide an opinion on the credibility of another witness since matters of credibility are to be 

determined by the trier of fact”); People v Row, 135 Mich 505, 507; 98 NW 13 (1904) 

(concluding that that the trial court erroneously allowed a witness to testify to being satisfied that 

the alleged victim of a sexual assault told the testifying witness “the truth” about what the 

defendant had done); People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975) (noting “the 

settled and long-established rule that a witness cannot express an opinion concerning the guilt or 

innocence of a defendant”). Our Supreme Court has explained that a witness’s testimony 

commenting on the credibility of another individual has “no probative value because they do 

nothing to assist the jury in assessing witness credibility in its fact-finding mission and in 

determining the ultimate issue of guilt or innocence.” Musser, 494 Mich at 349 (quotation marks 
-6-

and citations omitted). Consequently, such testimony is “considered ‘superfluous’ and . . . 

‘inadmissible lay witness [ ] opinion on the believability of a [witness’s] story’ because the jury 

is ‘in just as good a position to evaluate the [witness’s] testimony.’ ” Id. (citation omitted; 

brackets in original).

In Musser, our Supreme Court held that under the facts of that particular case, “the trial 

court abused its discretion by failing to redact the majority of the detectives’ out-of-court 

statements commenting on [the] credibility [of the complainant and child victims generally] from 

the recording [of the defendant’s police interrogation] that was played to the jury because [the 

detectives’ statements] were irrelevant to their offered purpose of actually providing context to 

defendant’s statements.” Musser, 494 Mich at 339, 343, 351, 365-366. The Musser Court 

further held that these errors undermined the reliability of the verdict, and it vacated the 

defendant’s convictions for second-degree criminal sexual conduct and assault and battery that 

had arisen out of allegations made by an eleven-year-old girl. Id. at 339, 366.

In People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995), our Supreme Court 

clarified “the proper scope of expert testimony in childhood sexual abuse cases.” The Peterson

Court held that an expert witness (1) “may not testify that the sexual abuse occurred,” (2) “may 

not vouch for the veracity of a victim,” and (3) “may not testify whether the defendant is guilty.” 

Id. at 352.1 However, the Peterson Court further held that an expert witness may properly testify 

“regarding typical and relevant symptoms of child sexual abuse for the sole purpose of 

explaining a victim’s specific behavior that might be incorrectly construed by the jury as 

inconsistent with that of an actual abuse victim and that an expert may also testify “with regard 

to the consistencies between the behavior of the particular victim and other victims of child 

sexual abuse to rebut an attack on the victim’s credibility.” Id. at 352-353. Notably, although 

the Peterson Court phrased its holding broadly in terms what was permissible and impermissible 

for an “expert” to testify about, the Peterson Court only specifically analyzed the use of expert 

testimony about common behaviors in child-sexual-abuse victims; the Court loosely referred to 

this type of evidence as “syndrome” evidence. Id. at 362, 369-371, 373-375. 

In Douglas, 496 Mich at 561, 566, our Supreme Court concluded that the defendant, who 

had been convicted of first-degree and second-degree criminal sexual conduct based on the 

alleged abuse of his then-three-year-old daughter, was entitled to a new trial on the ground that 

he had received ineffective assistance of counsel due to his trial counsel’s failure to object to the 

testimony of witnesses that constituted improper vouching for the credibility of the alleged 

victim. At the defendant’s trial, a detective sergeant testified to the content of a conversation 

between the alleged victim’s mother and the defendant in which the alleged victim’s mother 

recounted the allegation made by the alleged victim and told the defendant, “I know my daughter 

don’t lie; why is she making these allegations then.” Id. 561, 563, 568. Additionally, the 

forensic interviewer who interviewed the alleged victim was qualified as an expert and testified, 

as pertinent to the instant case, about the content of the interview and that she “considered 

 1 In reaching this holding, the Peterson Court explained that it was reaffirming its holding from 

People v Beckley, 434 Mich 691; 456 NW2d 391 (1990).
-7-

whether there had been a misunderstanding, but determined there was not because [the alleged 

victim] was ‘very clear’ about what happened.” Id. at 563, 569. The forensic interviewer further 

opined that the alleged victim had not been coached and that she believed that the alleged victim 

“ ‘was being truthful with [her]’ during the interview.” Id. at 570 (brackets in original). Finally, 

a CPS worker testified that she had filed a petition to initiate child-protective proceedings after 

interviewing the alleged victim’s mother and observing the forensic interview. Id. The CPS 

worker further testified that she would not seek such a petition if she believed that a child was 

lying or if she had not substantiated that the alleged conduct had occurred. Id. The CPS worker 

also testified that she substantiated the alleged victim’s allegations through her own investigation 

and that there was no indication in the forensic interview disclosures that the alleged victim had 

been coached or untruthful. Id. The defendant’s trial counsel did not object to any of this 

testimony on the ground of improper vouching. Id. at 569, 570.

In addressing the defendant’s claim of ineffective assistance of counsel, the Douglas

Court determined that the testimony of the CPS worker regarding her conclusions that the 

allegations had been substantiated and that the alleged victim had not been coached or untruthful 

“violated the well-established principle that ‘it is improper for a witness or an expert to comment 

or provide an opinion on the credibility of another person while testifying at trial.’ ” Id. at 583, 

quoting Musser, 494 Mich at 349. The Douglas Court further determined that the forensic 

interviewer’s testimony also violated this prohibition on vouching when she offered her expert 

opinions that the alleged victim was being truthful and had not been coached. Douglas, 496 

Mich at 583. The Court also determined that the detective sergeant’s testimony about the 

statement of the alleged victim’s mother constituted improper vouching. Id. at 584, 586.

The Douglas Court concluded that the defendant’s trial counsel performed below an 

objective standard of reasonableness by allowing the above testimony to come in at trial without 

objecting. Id. at 585-586.2 Noting that counsel’s trial strategy must be actually “sound” and 

carried out through objectively reasonable decisions, as well as the rule that “ ‘a court cannot 

insulate the review of counsel’s performance by calling it trial strategy,’ ” the Douglas Court 

reasoned that there was “no sound strategy in counsel’s failure to object to the vouching 

testimony.” Id. (citation omitted).

The Douglas Court further concluded that there was a reasonable probability that the 

outcome of the defendant’s trial would have been different but for the deficient performance of 

the defendant’s trial counsel. Id. at 586. The Court reasoned as follows:

As already discussed, the prosecution’s case hinged wholly on the credibility of 

[the alleged victim’s] allegations, making defense counsel’s success in 

undermining that credibility all the more critical. Rather than pursuing this 

 2 Similar to the record in this case, the Douglas Court did note that the defendant’s trial counsel 

had initially made a successful challenge to the prosecution’s “attempt to elicit an expert 

conclusion from [the forensic interviewer] regarding the veracity of [the alleged victim’s] 

statements” but then “inexplicably permitted that testimony without objection.” Douglas, 496 

Mich at 570, 585.
-8-

strategy vigilantly, defense counsel permitted . . . three figures of apparent 

authority and impartiality, with direct involvement in and knowledge of the 

investigation leading to the defendant’s prosecution—to present testimony 

improperly reaching the key factual issue before the jury: whether [the alleged 

victim] was telling the truth. [The forensic interviewer’s and CPS worker’s] 

commentary was especially prejudicial in this regard—the former offering the 

jury an expert opinion regarding [the alleged victim’s] credibility in the instant 

case, and the latter offering the jury her, and CPS’s, professional assessment of 

the veracity and substantiation of [the alleged victim’s] complaints. We cannot 

overlook the influence such testimony may have in a case such as this. See 

Musser, 494 Mich at 357-358 (noting that, “given ‘the reliability problems created 

by children’s suggestibility,’ ” this Court “has condemned opinions related to the 

truthfulness of alleged child-sexual-abuse complainants” because the jury in such 

credibility contests “is often ‘looking to “hang its hat” on the testimony of 

witnesses it views as impartial’ ”), quoting Peterson, 450 Mich at 371, 376. 

Given the centrality of [the alleged victim’s] credibility to the prosecution’s case, 

the lack of evidence beyond her allegations, and the nature of the testimony 

offered by [the forensic interviewer, CPS worker, and detective sergeant], we 

believe it reasonably probable that, but for this testimony, the outcome of the 

defendant’s trial may have been different. See Musser, 494 Mich at 363–364. 

[Douglas, 496 Mich at 586-588.]

The Douglas Court granted the defendant a new trial on the basis of his ineffective assistance of 

counsel claim.3

Furthermore, as previously discussed, this Court held in Shaw, 315 Mich App at 672-674, 

676-678, that the defendant received ineffective assistance of counsel based on his trial counsel’s 

failure to object to multiple hearsay statements that essentially bolstered the complainant’s 

credibility and that were introduced at trial through the testimony of the complainant’s family 

members, the police detective who conducted a forensic interview of the complainant, and the 

doctor who conducted a medical examination of the complainant.4 The hearsay statements 

recounted the complainant’s out-of-court descriptions of the sexual abuse allegedly committed 

by the defendant. Id. at 673-674, 676. The Shaw Court was also concerned about how the 

testimony of the detective and the doctor amounted to bolstering the credibility of the 

complainant in a case where the complainant’s credibility was of central importance. Shaw, 315 

Mich App at 674, 676-678.

 3 The Douglas Court also concluded that the trial court had committed independent reversible 

error by admitting certain out-of-court statements by the alleged victim about the abuse, which 

were made during her forensic interview, to be admitted. Douglas, 496 Mich at 566. But the 

Court explained that the “trial court’s error and defense counsel’s deficient performance were 

each sufficiently prejudicial to require a new trial.” Id. (emphasis added).

4 Notably, Guertin was also the doctor involved in Shaw. 315 Mich App at 673.
-9-

As previously discussed, the Shaw Court noted with respect to the detective that she 

testified about the complainant’s statements and further testified “extensively” about how she 

was able to “confirm[] numerous background facts that the complainant reported to her,” how 

she was able to “confirm the veracity” of statements made by the complainant, and how she was 

able to corroborate the complainant’s statements before charges were filed. Id. at 676. The 

Shaw Court reasoned that the detective effectively “concluded that the complainant was credible 

and so advised the jury.” Id. With respect to the doctor who examined the complainant, the 

Shaw Court noted that the doctor “recounted in detail the complainant’s statements to him about 

the abuse,” testified that he believed the complainant’s allegations on the basis of her medical 

history, and testified that he “believed that his physical findings were consistent with someone 

who had suffered child sexual abuse.” Id. at 674, 678. The Shaw Court concluded that the 

defendant’s trial counsel performed deficiently by failing to object to the inadmissible hearsay 

testimony of the detective and the doctor because there was no reasonable basis to conclude that 

it would be strategically advantageous to permit highly damaging hearsay testimony in order to 

point out minor factual inconsistencies in the complainant’s statements. Id. at 675-677, 677 n 3. 

Finally, the Shaw Court concluded that there was a reasonable probability that outcome of the 

trial would have been different had the defendant’s trial counsel objected to this testimony 

because the complainant’s version of events was repeatedly presented to the jury and was done 

so by the detective and the doctor who essentially gave the complainant’s story “an official 

stamp of approval” and bolstered her credibility. Id. at 677-678.

First, in defining the type of testimony that constitutes impermissible vouching 

testimony, it is clear that a witness cannot explicitly testify that another witness was truthful or 

was lying. Douglas, 496 Mich at 583-584; Musser, 494 Mich at 349; Buckey, 424 Mich at 17; 

Row, 135 Mich at 507. However, determining whether testimony is vouching in nature is not 

limited to whether a witness used certain magic words related to truth, lying, credibility, or the 

like. The Douglas Court, in concluding that the CPS worker impermissibly vouched for the 

alleged victim’s credibility, specifically referred to the fact that the CPS worker had testified that 

her investigation had led her to find that the alleged victim’s allegations were substantiated. 

Douglas, 496 Mich at 583. Furthermore, this Court reasoned in Shaw that the detective 

essentially informed the jury that she had determined that the complainant was credible because 

the detective testified about how, through her investigation, she “confirmed numerous 

background facts” reported to her by the complainant and confirmed the veracity of various 

statements by the complainant before filing charges. Shaw, 315 Mich App at 676.

Assessing the credibility of witnesses is a task that is firmly within the province of the 

jury; accordingly, is no probative value in permitting a witness to testify about the credibility of 

another witness because such testimony does not aid the jury in its task of judging credibility and 

“the jury is ‘in just as good a position to evaluate’ ” the believability of a witness’s story. 

Musser, 494 Mich at 348-349 (citation omitted). In other words, “[w]here a jury is as capable as 

anyone else of reaching a conclusion based on certain facts, it is error to permit a witness to 

reason from those facts to a conclusion,” and “[b]y allowing such testimony, the province of the 

jury [is] invaded.” People v Walker, 40 Mich App 142, 143-145; 198 NW2d 449 (1972) 

(concluding that where there was conflicting evidence about whether the gun that fired the fatal 

shot was held at the time of the shooting by individual positioned near the defendant and an 

eyewitness had testified about the respective positions of the defendant and the other individual 

at the time of the shooting, the trial court erred by permitting the prosecutor to elicit testimony 
-10-

from the eyewitness “regarding which individual could have fired the fatal shot given the point at 

which the fatal bullet entered decedent’s body”). This rationale was explained as follows by our 

Supreme Court more than a century and a half ago:

It is also an elementary rule that, where the court or jury can make their 

own deductions, they shall not be made by those testifying. In all cases, therefore, 

where it is possible to inform the jury fully enough to enable them to dispense 

with the opinions or deductions of witnesses from things noticed by themselves, 

or described by others, such opinions or deductions should not usually be 

received. [Evans v People, 12 Mich 27, 34 (1863).]

Thus, the rule that can appropriately be derived is that is improper credibility vouching to 

allow a witness to testify about how he or she personally confirmed various elements of another 

witness’s story or about why another witness’s story is plausible or logical. Such testimony 

essentially connects the dots for the jury from evidence to conclusion via one witness’s 

explanation of how another witness’s testimony has been corroborated and, by extension, and the 

witness’s veracity confirmed. This kind of vouching testimony, rather than simply asserting that 

another individual told the truth, instead functions as an attempt to get the jury to substitute the 

witness’s reasoning or personal investigation for the jury’s own evaluation of another witness’s 

credibility.

III. TESTIMONY OF DETECTIVE HARRISON

Applying the above legal principles to Harrison’s testimony, Harrison improperly 

vouched for the credibility of DG and KG. As previously stated, Harrison conducted forensic 

interviews of both DG and KG during the course of investigating the allegations in this case, and 

she was called as a witness by the prosecution. During her direct examination, Harrison testified 

extensively about the nature of the forensic interview process and Michigan’s forensic 

interviewing protocol, as well as her specialized training for investigating child sexual abuse 

cases and conducting forensic interviews. More specifically, she testified that Michigan’s 

forensic interviewing protocol was developed “to assist us in the best techniques for interviewing 

children”; that she primarily investigates cases of child sexual abuse; and that in these cases, her 

“job is to thoroughly investigate and determine if it should or shouldn’t be forwarded to the 

Prosecutor’s office for review.” The prosecutor also questioned Harrison on direct examination 

as follows:

Q. I want to talk to you a little bit about forensic interviewing. Could you 

please tell the jury what is forensic interviewing? How does it differ from a 

normal interview?

A. The goal for a forensic interview is to obtain a statement from a child 

in an unbiased developmentally appropriate neutral way, to assist in criminal 

justice and child welfare systems. What that really means, the word “forensic” is 

research-based or scientific. The State of Michigan developed the protocol based 

on research to help us as every day professionals on the do’s and don’ts of how to 

interview a child, what the best practice is. 
-11-

Harrison testified that she used the forensic interview protocol in her interviews of DG

and KG in this case, although they were 18 years old at the time. Harrison also indicated that the 

initial phase of the forensic interview includes obtaining “a promise to tell the truth” from the 

interviewee. Additionally, Harrison explained that in a forensic interview, “we develop alternate 

hypotheses to look at different possibilities,” that the alternate hypotheses are tested through 

questioning in the interview, and that “[i]t’s a fact-gathering mission to look at all the 

possibilities, minimize suggestibility.” Harrison stated, “There can’t be any misunderstandings,”

and “[w]e need to make sure that we are getting the allegations correct, that we’re looking to see 

what other possibilities are.” According to Harrison, two alternate hypotheses were developed: 

(1) that there was a misunderstanding regarding whether there was actually a sexual touch and 

(2) that one of the involved parties was lying or that only one of the twins was abused. Harrison 

tested these hypotheses in her interviews of DG and KG. When the prosecutor asked Harrison if 

she was “able to eliminate any of the hypotheses or come to any conclusions,” defense counsel 

objected “to any conclusions” on the ground that the prosecutor was “essentially asking her to 

determine what the truth was of what their allegations are.” The prosecutor withdrew the 

question. However, shortly thereafter, Harrison testified that during the interview, she “look[s] 

for details of the act that would determine whether this is a sexual or non-sexual touch or 

whether it was a misunderstanding. The prosecutor followed up by questioning Harrison as 

follows without objection from defense counsel:

Q. At the end of your interview, is your investigation complete if you 

eliminated certain alternate hypotheses, is that the end of your investigation? 

A. No.

Q. All right. So are you able to eliminate alternate hypotheses, or any of 

the hypotheses during your actual interview process? Were you able to, in this 

particular case?

A. Well, I mean, my job is to gather the facts. So I, during the forensic 

interviews of both K[G] and D[G]—let’s see how to answer that. There are times 

in which there is a misunderstanding. So then the case ends at that point.

After the forensic interview, the allegation, itself, which had been reported 

to me, was that [defendant] had sexually abused K[G] and D[G] [], that was still 

standing at the end of the interview. So I continued the investigation.

Q. You weren’t concluding at the end that they had been abused, but 

rather that’s where your investigation is now targeted?

A. Correct.

Q. Were you able to address the alternate hypotheses [sic] that it was a 

misunderstanding?

A. Yes.

Q. How did you do that?
-12-

A. Well, they were clear—so I asked questions and they provided clear 

statements to me. So it’s not a misunderstanding at that point.

Q. All right. And how about the allegation that one was abused and not 

the other?

A. They both provided clear disclosures.

Q. At that point you were left with that it actually happened or that it was 

a lie, correct?

A. Correct.

Q. You are not able at that point to eliminate the lie?

A. Well, a portion of it. So part of that could be, does the reporting 

source[5] have a motivation, or is the reporting source lying. And so I develop 

questions during the interview as who is the first person that you told. So if they 

told somebody prior to the reporting source, then that helps me with that. 

Defense counsel did not object to the above testimony or otherwise renew his previous objection. 

Harrison also testified that she needed to go the scene of the incidents described in a forensic 

interview “to see if that is possible” and to see “the viewpoint of witnesses” in order to “put 

[herself] in that situation to then get additional leads or information that [she] can follow up and 

gather those facts to bring.” Harrison would take photographs while at a given location.

Although not specifically referenced by defendant in his appellate argument, Harrison also 

offered the following testimony during her direct examination, to which there was no objection 

and in which she essentially explained to the jury why she thought the description given by DG

and her mother of the incident where defendant allegedly grabbed DG’s chest made sense:

Q. Again, we are using this photograph, just kind of a way as an example. 

But this photograph, in and of itself, does it provide for you and your 

investigation any corroboration of what you were told?

A. Yes. I need to understand if what’s being reported to me is possible. 

That’s why, even if a crime had occurred decades prior, I always make it as a rule 

to go back to visit that scene, whether it’s changed or evolved or not, whether the 

furniture is the same or different, or the walls are even different. I still need to go 

to document it to see what I find to see where the facts lead.

 5 In this case, it appears that DG’s mother would have been the “reporting source”: Harrison 

testified that when she began working on this case, her “first contact had been with [the mother]” 

who had contacted law enforcement and whose “twin daughters had disclosed after their high 

school open house that they had been sexually abused for several years by their cousin, 

[defendant].” 
-13-

Q. In this particular photograph, did it help you to understand ultimately 

how someone could be sitting on the couch and having another person in the 

room?

A. Yes.

Q. How so?

A. The positioning of the furniture, of how, you know, the one chair is a 

little bit more forward. And then also the description of sitting close together. 

And when you see, you know, how couch cushions are divided. And then also the 

opportunity for the reflection. [The mother] had been reporting seeing a 

reflection. And as an investigator I didn’t really understand that at that point.

Q. So looking at People’s 52, taking that photograph, did that help you 

understand what she meant better?

A. I think what I see there is that reflections are possible. Again, at that 

point, I didn’t know where the windows were in the home, or if reflections were 

possible in the home. So I still wasn’t certain did she see the reflection in that TV 

or a different one, or a piece of glass or a different one. But I see that reflection is 

possible.

Q. Thank you. So we just kind of did that as an exercise. Is that a good, a 

fair depiction of how you kind of run an investigation? You take the facts as you 

understand them, and then look for corroboration evidence, one way or the other?

A. Correct. 

During Harrison’s cross-examination, defense counsel questioned Harrison as follows:

Q. Now, you have talked about there is instances where there is a delayed 

disclosure. Does delayed disclosure equate in any way with being a credible 

disclosure?

A. I can’t—

Q. I guess the question I’m asking, because the disclosure is delayed, does 

that somehow make it, at least in your experience, more credible?

A. I see cases—my job is to investigate and report the facts. But I see 

cases in both delayed and immediate disclosure. In both delayed and immediate 

disclosure, sometimes I screen them out. And in both delayed and immediate 

disclosure, sometimes I’ve turned them over to the Prosecutor’s office. 

Defense counsel also attempted to elicit inconsistencies between DG’s and KG’s forensic 

interview statements and their trial testimony by asking Harrison. For example, defense counsel 

questioned Harrison as follows:
-14-

Q. How was it that K[G] made it clear to you how the pencil was used in 

this case?[6]

A. When I said a clear statement, my alternate hypotheses [sic] was that 

this could have been a misunderstanding or a non-sexual touch. There was no 

doubt in my mind that she was describing sexual touch at the end of the interview. 

So that was what I meant by that.

And then every detail, there is not an expectation to make every 

detail absolutely clear. That’s not always possible.

Q. But you would acknowledge that any—that there was no clarity with 

regard to D[G]’s statement to you—I’m sorry—K[G]’s statement to you about 

how, where, what, why, a pencil was used on her, was there?

A. I disagree with what you’re saying. I mean, we had a discussion. I 

asked questions about objects. She stated objects to me. I do think that that’s 

clear. 

On redirect, the prosecutor elicited further testimony, without objection from defense 

counsel that allowed Harrison to explain how her investigation corroborated DG’s allegations:

Q. [Defense counsel] asked you about who you interviewed concerning 

the hot tub incident that we’re talking about. And I believe your answer was, 

obviously, D[G], initially. And then you interviewed the Grandma and Grandpa 

[], Johnny [], Senior and D[G] correct?

A. Yes.

Q. What information did they provide that either—that helped you out 

with understanding D[G] and what she told you that had happened? And let me 

just, if I can, just jump to as the swimsuits.

A. Yes.

Q. So what did D[G] tell you about swimsuits in the hot tub?

A. She said that most of the time there isn’t swimsuits in the hot tub. I 

could be wrong on most of the time. She said that the kids did not wear swimsuits 

 6 During KG’s cross-examination, defense counsel had asked KG about portions of the 

description of the Allen wrench incident that KG gave during her forensic interview in which 

KG had stated that defendant was “look[ing] for something else, like pencils or just other things” 

but had not described defendant actually touching her with a pencil.
-15-

in the hot tub. So I wanted to speak to an adult about that or another source to see 

if that is what the other source was telling me.

Q. What did you find out?

A. That they agreed with that statement.

Q. What about shirts, where to get shirts?

A. I asked the same question of Grandma [], where are shirts kept. He 

[sic] showed me the closet which, when I was there, was consistent with what 

information had been provided to me by D[G].

[7]

Q. What about the fact that there had been a waterbed? What, if anything, 

about the waterbed in that room?

A. In Grandma and Grandpa G[]’s bedroom?

Q. Yep.

A. Yes. So when I was there, the furniture had changed. But she was 

able to describe to me what furniture had been like prior, you know, 13 years 

prior.

Q. And that was consistent, correct?

A. Yes.

Q. Why is that important in your investigation on sexual abuse cases?

A. For more than one reason. Again, it’s to understand the scene to help 

create a picture of was this possible. It also is to test alternate hypotheses to see—

look for consistency in witness statements.

Q. All right. The thing about the pond incident, near the dock, do you 

recall that incident with D[G]?

A. Yes.

Q. What did you do—these are ways to corroborate statements, fair to 

say?

A. Yes.

 7 It appears that the second reference to DG was intended to refer to the alleged victim in this 

case. DG and her grandmother have the same name.
-16-

Q. What did you do to corroborate the statement about the pond incident, 

if anything?

A. It was mainly looking to see where the pond was, which house was the 

pond at, how close was the pond or far to the house. Where are seating areas. 

What does the dock look like. Basically observing, based on she had talked about 

the proximities of the dock, the heighth [sic] of the dock. I wanted to go there and 

document what the dock looked like.

Q. Okay. What about people’s observations about the two of them in the 

pond at other times?

A. Right. There was more than one witness statement about hollering out 

to them or seeing them at a distance. And I wanted to be able to put myself in that 

position of where those people would be, and then how far is that to holler out, or 

how far is that to what could they see, what would be their vantage point. 

Harrison specifically explained how, in her view, a photograph of the scene where 

defendant allegedly grabbed DG’s chest demonstrated that the reflection reported by DG’s 

mother was “possible.” In essence, Harrison testified regarding her interpretation of the 

evidence and advocated that a particular conclusion be drawn by the jury—namely, that the story 

told by DG and her mother made sense and was believable—even though the jury was just as 

capable of evaluating whether the photograph supported the veracity of DG’s and her mother’s 

respective testimony. By asking the jury to allow her own reasoning to replace that of the jury’s 

in this regard, Harrison was improperly vouching for the credibility of DG and her mother. 

Musser, 494 Mich at 348-349; Evans, 12 Mich at 34; Walker, 40 Mich App at 144-145.

Furthermore, Harrison testified that the initial phase of a forensic interview includes 

obtaining a “promise to tell the truth” from the interview and that the interview was “a factgathering mission.” She explained that she tested the alternate hypotheses (1) that the allegations 

involved a misunderstanding regarding whether there was a sexual touch and (2) that the 

allegations involved a lie. Harrison stated that she concluded that there was no misunderstanding 

because the victims “provided clear statements,” and she also indicated that she was partially 

able to eliminate the notion that lying was involved. Harrison also heavily emphasized that the 

forensic interview process as “unbiased,” “research-based,” “scientific,” and “neutral.” This 

testimony served as clear vouching for the veracity of the victims’ statements through painting 

the forensic interview process as a rigorous truth-testing tool on which the jury could rely to 

conclude that the victims’ statements were believable. Harrison also invited the jury to rely on 

the quality of her investigation by testifying about how she corroborated the girls’ statements 

through comparing them with the statements of other individuals she interviewed and noting the 

consistencies; Harrison expressly explained that her job was to “thoroughly investigate” cases to 

determine whether referral to the prosecutor’s office was warranted. By so testifying, Harrison 

presented the forensic interview process and her own investigation as substitutes for the 

necessity of the jury to independently make its own credibility determinations, and she therefore 

improperly vouched for the credibility of both victims. Musser, 494 Mich at 348-349; Evans, 12 

Mich at 34; Walker, 40 Mich App at 144-145. In short, under the guise of ill-described 

“scientific methods” she held herself out to the jury as a human lie-detector.
-17-

Moreover, although the prosecution argues that these statements were not hearsay 

because they were offered to show their effect on Harrison’s investigation rather than for the 

truth of the matter asserted, the statements were still inadmissible because they were effectively 

part of Harrison’s improper vouching testimony and were accordingly not offered for any 

relevant purpose. As our Supreme Court has explained, “even if an out-of-court statement is not 

offered for the truth of the matter asserted, the statement is not automatically admissible because 

the ‘touchstone’ of admissibility is ‘relevance.’ ” Musser, 494 Mich at 354 (citations omitted). 

To the extent that defense counsel’s cross-examination of Harrison and defense counsel’s 

trial strategy of generally attempting to undermine the credibility of prosecution witnesses could 

be understood to have made the steps of Harrison’s investigation somehow relevant (which is 

what the prosecution appears to argue on appeal) the prosecutor at trial should have only elicited 

testimony from Harrison that would show that she followed proper investigative procedures 

without eliciting testimony that took the additional step of explaining how her investigative 

findings demonstrated that the stories of other witnesses were believable. It is that additional 

step of essentially connecting the dots for the jury that constituted the improper vouching by 

Harrison.

Returning to defendant’s ineffective assistance of counsel claim, defense counsel in this 

case failed to object to Harrison’s improper vouching testimony set forth above. “[C]redibility 

contests are not uncommon in criminal sexual conduct cases,” People v Anderson, 446 Mich 

392, 407 n 37; 521 NW2d 538 (1994), cert den sub nom Michigan v Anderson, 513 US 1183; 

115 S Ct 1175; 130 L Ed 2d 1128 (1995), and “the principle issue in cases involving criminal 

sexual conduct is the credibility of the complainant,” People v Beckley, 434 Mich 691, 717 n 39; 

456 NW2d 391 (1990) (opinion by BRICKLEY, J.). And while the instant case did not involve a 

credibility “contest” in the strict sense of the phrase because defendant did not testify, the 

credibility of the alleged victims and other prosecution witnesses was clearly of central 

importance in this case. Yet, despite the importance of witnesses’ credibility and defense 

counsel’s apparent strategy of trying to undermine the victim’s credibility, defense counsel still 

did not challenge the clearly inadmissible vouching testimony by Harrison set forth above. Our 

Supreme Court has long recognized “the undue weight that jurors may be inclined to place on 

police officers’ statements.” Musser, 494 Mich at 363. In this case, there was no “sound”

strategic reason for defense counsel’s failure to object to Harrison’s pervasive vouching, and 

defense counsel’s performance thus fell below an objective standard of reasonableness. 

Douglas, 496 Mich at 585-586.8

 8 Defense counsel did object, on the ground of improper vouching, to the prosecutor’s question 

asking Harrison whether it is typical for a victim to “disclose everything that happened to them 

in that initial interview.” In making his objection, defense counsel stated that this question was 

asking Harrison to “give an opinion as to credibility.” The prosecutor argued that the question 

was actually “based on her training and experience doing interviews,” and the trial court stated 

that “[i]n essence, he is asking as she did this, what did you do.” Defense counsel responded to 

the trial court’s statement by saying, “I don’t have a problem with that. If he can restrict that, I 

won’t have an objection.” The trial court then overruled defense counsel’s objection. However, 
-18-

IV. TESTIMONY OF GUERTIN

Dr. Guertin, a specialist in general pediatrics, pediatric critical care, and child abuse, 

testified as an expert in “child abuse.”9 Guertin conducted examinations of both victims. In 

response to the prosecutor’s question about why it was still important to examine an individual 

when the alleged abuse did not occur recently, Guertin responded that “[i]t’s what it always is, 

which is diagnosis and treatment.” He explained that sexual assault or physical abuse can be 

diagnosed “years afterwards”; that it is important “to make sure that the perpetrator still doesn’t 

have access to the child, even if she was a teenager”; that it is important to make sure that 

counseling is being provided,10 and that there were still potential sexually transmitted infection 

issues. 

Guertin examined DG first. He testified that he took a medical history from her, during 

which she told him “that starting at an early age, sometime around five years or so, up through 

about age 15 or 16, that she had been raped and molested by a cousin,” who she identified as

defendant. According to Guertin, DG told him that the incidents occurred at her grandmother’s 

home, that her mother had witnessed one incident of inappropriate touching, and that the other 

incidents were not seen by anyone else. Guertin’s testimony also included recounting more 

specific allegations made by DG during the course of the medical history, including that 

defendant had done “a lot of rough fingering [and] touching” inside of DG’s “private area,” that 

defendant had put “the plastic part of a wrench that had been gnawed on or chewed on by a dog”

inside her private area, that defendant had engaged in “genital to genital contact” with DG when 

she was five years old, that there was an incident in a pond at her grandparents’ home where DG 

“had to manipulate [defendant’s] penis” under the water, that defendant used pornography with 

DG “while he was molesting her,” and that defendant told DG that her family would be ruined or 

destroyed if she told anybody. Guertin also testified that he performed a physical examination of 

DG and that she had “two deep notches in her hymen.” DG also informed Guertin that she was 

sexually active at the time of the examination.

According to Guertin, the potential for injury to the hymen is “higher in the pre-pubertal 

period” because the hymen is fragile and does not stretch at that stage of a child’s development, 

and “the opening of the hymen in a pre-pubertal child, a child up through about age 10 to 12,” is 

approximately 10.5 millimeters, which is smaller than the size of the average finger, erect adult 

penis, or the presumed size of a wrench handle. However, Guertin further explained that a 

sexually active individual “can certainly have evidence of sexual trauma from normal or 

volitional sexual activity[] [a]nd depending on how active they are, the incidence of that can be 

pretty high.” 

 

defense counsel permitted the other impermissible vouching testimony described above to come 

in without any objection.

9 The prosecutor moved to qualify Guertin as an expert “in the field of sexual abuse against 

children,” and defense counsel indicated that he had no objection.” The trial court then stated 

that it was qualifying Guertin as an expert “in child abuse.” 

10 Notably, Guertin clarified that “we don’t provide the psychological counselling.” 
-19-

Guertin testified that in his opinion, DG:

gave a very clear history of being sexually molested over a period of years, 

beginning at a very early age, age 5, by a person named [defendant]. It included 

fondling, inserting the handle of a tool into her vagina, which was both painful 

and caused bleeding. She also integrated [sic] that there was at least some degree 

of penetration with his penis. On one occasion she was very young, age five. 

And she indicated that she was compelled to manipulate his penis as well. She 

was warned that discovery of this would ruin her family. And, also, he used 

pornography at least during some of these acts.

The physical examination showed two deep notches. One almost a 

transection, which clearly could support—which clearly supports an allegation of 

sexual abuse. As well, she was sexually active. And that you cannot necessarily 

separate out the findings that you see from abuse versus that volitional sexual 

activity. That’s it. 

Regarding KG’s medical history, Guertin testified as follows in response to the 

prosecutor’s questions:

Q. What was the history of K[G]?

A. Oh. She knew that she had come to the office to get a pelvic exam, 

because she had been molested. Actually she said a pelvic exam for being 

molested as a child. So I asked her: Well, were you or not. And her answer was: 

Yes. I asked if it happened only once or more than once. She said more than one 

occasion. I asked her how old was it when it started. She said five or six years 

old. I asked her when the last sexual conduct was. She said probably 13 years 

old. I asked if anybody saw what happened to her. She said no. I asked her 

where these things took place. She actually listed a number of locations where 

she had been molested. She said her own home, in her bedroom, in her 

grandparents’ house, the upper floor of her great-grandmother’s house, and the 

swimming pool at [defendant’s] parents’ home.

Q. And what else did she tell you?

A. She indicated that nothing happened that involved his mouth. She 

indicated that the person who did this was [defendant], who was her cousin. She 

indicated that he did molest her with his hands, his fingers.

Q. Now, did she tell you anything else?

A. She said that he forcibly put a finger inside of her, and then it hurt her. 

But she didn’t describe or remember bleeding related to those episodes. I asked if 

her [sic] if he did anything with his penis. Her answer was no. I asked her if he 

used anything else to touch her improperly. Her answer was the handle of a screw 

driver, an Allen wrench. And by that she meant the same thing. And with a 

pencil. I asked her if that hurt her. She said yes. I asked her if there was any 
-20-

bleeding with that, and she said yes. So she indicated that there was an event 

using a tool that had caused her both pain and bleeding. She didn’t indicate that 

anything involved her anus or her own mouth or her own hands. And she didn’t 

indicate that pornography was used with her.

I also asked her if he said anything to her.

Q. Okay.

A. And her answer was: He would tell me, this is normal. And you 

shouldn’t be telling people because it’s private.

Q. And K[G] was also sexually active, correct?

A. Yes. 

Additionally, Guertin testified that his physical examination revealed that KG had evidence of 

injury to her hymen in the form of “a deep notch.”

Guertin testified that in his opinion, KG:

also gave a strong history of being sexually molested by [defendant]. This 

included digital penetration and instruments being used to penetrate her vaginal 

area, which caused pain and bleeding. This included the handle of a screwdriver. 

[Defendant] would tell her that the activity was normal, but that it needed to be 

kept private. The physical examination showed deep notch at the 5:00 position of 

the hymen, which confirms sexual trauma. Again, just as with her sister, and a 

sexually active person, you can’t necessarily say it was from one or the other. 

The prosecutor questioned Guertin on direct examination to clarify his opinion regarding 

whether the alleged victims’ injuries were caused by sexual abuse or consensual sexual activity:

Q. Now, Doctor Guertin, you’ve testified and your assessment clearly 

shows it’s difficult to pinpoint and say this is either from sexual abuse or this is 

from consensual adult sexual contact with these types of injuries, correct?

A. Correct.

Q. Is there—is one more likely than the other, can you even say that?

A. What you can say is you’re more likely to suffer an injury if there is 

penetration across the plane of the hymen during the pre-pubertal period. But you 

still can get an injury. And especially if there is really frequent intercourse from 

post-pubertal sex. But just in terms of—in terms of the vulnerability of injury, if 

the sexual contact in the pre-pubertal period includes penetration across the plane 

of the hymen, then there is a higher probability from that in the pre-pubertal 

period to cause injury than in the post-period.
-21-

Remember, the post-pubertal period, the opening of the girl’s 

hymen is typically 12 to 25 millimeters. And they have a distensible hymen. So 

penetration simply is better tolerated there, and less likely to cause injury.

Q. All right. Thank you. So, finally, looking back on D[G]’s medical 

history, and her examination, are there any inconsistencies in her physical exam 

with the history that she gave you?

A. No. No. Both kids actually have evidence of sexual trauma. Both 

kids indicated not only painful, but bleeding sexual encounters that were 

molestation, episodes of molestation. And both kids also described being 

sexually active. So what we found is consistent with either one.

Q. With both children, correct?

A. Sure. 

During cross-examination, Guertin further clarified this point, stating that

you can clearly get these injuries with a painful sexual molestation encounter that 

entailed bleeding, especially if it was in the pre-pubertal period. You can also get 

these findings from consensual sex, especially recurrent consensual sex. 

Guertin testified that his conclusion that DG and KG had given “clear” and “strong” histories, 

respectively, of sexual abuse were based only on what they reported and the level of detail; he 

could not “tell you if they were telling [him] the truth.”

On redirect, the prosecutor questioned Guertin as follows:

Q. Now. Is it—when you have a history of sexual abuse in this way, you 

indicated a clear history and a strong history, I think, for each girl, then you find 

those particular injuries. And in K[G]’s case she specifically says there is no 

accidental injury. What, if any, conclusion do you draw from that?

A. The conclusion that you can—

Q. Or diagnosis, I should say.

A. There are a number of conclusions you can draw. And they are in the 

assessment.[11] But the first one is a child gives a history of recurrent forms of 

sexual molestation. She is describing penetrated molestation on more than one 

occasion. She is not only is describing discomfort, but describes bleeding 

associated with at least one of these episodes.

 11 Guertin explained that the “[a]ssessment mainly just means my opinion.” 
-22-

When you examine her, you find that she has two tears in her hymen. 

Tears in the hymen are completely consistent with what she has said about 

episodes of penetrative abuse. By the way, they are also consistent with a history 

of recurrent volitional sexual intercourse.

The second child gives you a history of penetrative events, gives you a 

history of bleeding as well as pain. She has a single tear on her hymen. That tear 

in her hymen is completely consistent with what she has said.

She also admits to volitional sexual intercourse. So it could be from that, 

too.

But in terms of making a diagnosis of sexual abuse, if you have a clear or 

detailed history, I cannot tell you that it is the truth. I’m telling you that it is clear 

or strong or detailed. And you have physical findings that would be consistent 

with what is in that history. I believe it is valid to conclude that the child was 

sexually molested. In this case both of them.

Q. Again, that’s based on your—it’s consistent—with the history is 

consistent with their findings?

A. Right. The diagnostic process is history. Sometimes that’s all you 

have—

Q. Sure.

A. —physical exam and any laboratory studies that you might do. And in 

this particular case the diagnostic process would lead you to a conclusion, that led 

me to a conclusion, frankly, that they have been molested.

Q. All right. And you weren’t there, you can’t know that for sure. 

You’re just basing this on a procedure, correct?

A. Right. I can’t know that for sure. (emphasis added).

On recross-examination, defense counsel questioned Guertin further on this point as follows:

Q. Part of the reason you don’t know it for sure is because you don’t 

know whether what they told you was true?

A. You can never know if it’s the absolute truth, it’s only partly true. So, 

yes, that’s the reason why you don’t absolutely know.

Q. So part of your conclusion is based on an assumption that what they’re 

telling you is accurate, then that would be sexual molestation?

A. Right. When we talk to a patient we ask for history. We try to find out 

about symptoms and signs. We take them at their word. (Emphasis added).
-23-

Finally, Guertin also testified about memory-related issues for victims of child sexual 

abuse. Guertin testified during his direct examination that if something happened to a person 

repeatedly over a prolonged period of time, it was difficult to remember the specifics about a 

particular incident. Subsequently, in response to a question from the jury regarding whether it 

was possible for memories to “blur together or get mixed up” when molestation happens over 

time, Guertin testified that:

the actual experiences are remembered, but not the details of each individual 

event. I’m going to give you an example. Let’s say on one event I get fondled in 

the pond, or I have to give somebody a hand job in the pond. Other things might 

have happened that day, but I remember that. Okay? Let’s say six times 

somebody put a finger up my vagina. I can’t remember on what day they did that 

and something else, necessarily. But I clearly remember having a finger put up 

my vagina. I don’t know necessarily that it happened 10 times or five. But I 

clearly know that I got a finger put up my vagina over this period of time.

So it’s the same with what kids remember if many things have happened 

many times is broadly what happened to them. If you were beaten as a child, you 

can clearly remember being beaten and remember how horrible it was. But you

can’t necessarily remember which day or which beating was that horrible or 

which beating is this is [sic], what ended up happening to you or that you 

remember being beaten. It’s the same way with this.

So over time, let’s say many things happened to a person many times. 

They remember what those physical things are that happened to them. They may 

not be able to remember how many of those things happened on any given day, 

how many of those things were just isolated events. 

That’s the answer to that question.

The Court: And Part 2 of [juror] number 8’s question is: Given your 

response, is this blurring likely or common among victims?

[Guertin]: It’s common among victims who have repeatedly had things 

done to them, and/or more than one thing done to them. They remember what the 

physical acts are that occurred that happened to them. Some they may not tell you 

about because they are ashamed of them. So kids commonly are ashamed to tell 

you about being sodomized, and they think nothing about telling you about 

vaginal penetration. Just all depends on the kid.

Even though there is blurring about each date, each of the event’s cycle, if 

you will, there is not blurring overall about the things that happened to them. 

Now what they choose to tell you or not, that’s up to the kid. 

On recross-examination, defense counsel questioned Guertin as follows:

Q. Just one more question with regard to a jury question. Other than the 

information that D[G] supplied you with regard to a lot of rough fingering, the 
-24-

other acts of being—claims of being penetrated with a penis, having been 

subjected to having to perform a hand job, and the incident where a tool was used, 

those were only one incident per each of those categories that she described?

A. Right. She remembers those incidents.

Q. There is no claim that there are repeated instances of those that would 

blur the details?

A. There is the claim by the child that forms of molestation began at age 

five or six, and ended at age 15 or 16. I think that provides a significant 

opportunity to blur the details. But it may not.

Q. Right. But with regard to the specific acts that I described, the 

penetration with a penis, the allegation about a hand job, the allegation about a 

tool, there was only one incident that was claimed by that child of each of those?

A. Right. What she is describing, there are events that she clearly 

remembers. (Emphasis added).

Defense counsel did not move to strike any of these answers given by Guertin, despite the fact 

that neither was responsive to defense counsel’s questions.

As an initial matter in analyzing defense counsel’s performance with respect to Guertin’s 

testimony, his testimony regarding the alleged victims’ statements was inadmissible hearsay. 

“Hearsay evidence is not admissible at trial unless within an established exception.” People v 

Meeboer, 439 Mich 310, 322; 484 NW2d 621 (1992), reh den sub nom People v Conn, 439 Mich 

1242 (1992); see also MRE 802. Under the hearsay exception in MRE 803(4), “[s]tatements

made for the purpose of medical treatment are admissible . . . if they were reasonably necessary 

for diagnosis and treatment and if the declarant had a self-interested motivation to be truthful in 

order to receive proper medical care.” People v Mahone, 294 Mich App 208, 214-215; 816 

NW2d 436 (2011), lv den 491 Mich 908 (2012). However, in Shaw, Judge Shapiro, writing for 

the majority, concluded that MRE 803(4) is not applicable when the examination “did not occur 

until seven years after the last alleged instance of abuse, thereby minimizing the likelihood that 

the complainant required treatment”; the complainant did not seek out the examining doctor but 

was instead referred by the police “in conjunction with the police investigation into the 

allegations of abuse by defendant”; and the complainant had seen a different physician, who did 

not testify at trial, for gynecological care during the seven year interval. 315 Mich App at 675. 

A situation with such a long period of time between the alleged sexual assault and the 

examination differs markedly from a situation where an examination is conducted within a 

relatively short time after the alleged sexual assault occurred. See, e.g., People v Garland, 286 

Mich App 1, 9; 777 NW2d 732 (2009) (concluding that the “victim’s statements to the nurse 

were reasonably necessary for her treatment and diagnosis” where the victim went to the hospital 

for medical care and was examined on the same day as the sexual assault).

In this case, there was also a period of approximately five years or more between the last 

alleged incident of sexual abuse and Guertin’s examinations of DG and KG. Moreover, Harrison 

testified that she referred DG and KG to Guertin after their forensic interviews, and DG testified 
-25-

that she had previously seen gynecologists and had disclosed the sexual abuse to someone at 

Planned Parenthood at some point before her examination with Guertin occurred. Although 

Guertin testified that he examined DG and KG for purposes of medical treatment that does not 

mean that the examinations were actually for medical treatment for purposes of MRE 803(4); an 

expert witness cannot testify to a legal conclusion. People v Drossart, 99 Mich App 66, 75; 297 

NW2d 863 (1980) (“[I]t is important that the expert witness not be permitted to testify about the 

requirements of law which apply to the particular facts in the case or to phrase his opinion in 

terms of a legal conclusion.”). Guertin’s examination was not reasonably necessary for medical 

treatment but was instead aimed at furthering the investigation. Therefore, Guertin’s testimony 

regarding the alleged victims’ statements was inadmissible hearsay because it did not fall within 

the hearsay exception of MRE 803(4). Shaw, 315 Mich App at 675.

Moreover, Guertin also impermissibly vouched for the credibility of DG and KG through 

his testimony. In stating his expert opinion, Guertin testified that DG “gave a very clear history 

of being sexually molested over a period of years, beginning at a very early age, age 5, by a 

person named [defendant].” Guertin then immediately continued by recounting several of DG’s 

specific allegations against defendant. Guertin also testified that in his expert opinion, KG “gave 

a strong history of being sexually molested by [defendant]” and then immediately continued by 

recounting specific allegations made by KG against defendant. Furthermore, although Guertin 

acknowledged that he could not actually tell if DG and KG were telling the truth, he also testified 

that his conclusion that DG and KG had given “clear” and “strong” histories, respectively, of 

sexual abuse were based only on what they reported and the level of detail in their accounts. 

Guertin further opined that when these histories were considered along with his findings of 

physical injury that was equally consistent with penetrative abuse as well as consensual sexual 

intercourse, he concluded that it was “valid” to conclude that DG and KG were “sexually 

molested.” Guertin also explained memory-related issues and then affirmatively stated that the 

incidents described by DG were what she remembered.

By repeating the alleged victims’ statements in the context of stating his expert opinion, 

Guertin went beyond merely recounting their medical history and instead imbued the allegations 

with the authoritative weight of a final conclusion by an expert. Essentially, Guertin testified 

that he found the alleged victims’ stories credible. When understood in this light, Guertin’s other 

testimony that he could not be certain that DG and KG had told him the truth seems somewhat 

disingenuous. As our Supreme Court has explained with respect to expert testimony in child 

sexual abuse cases,

Given the nature of the offense and the terrible consequences of a miscalculationthe consequences when an individual, on many occasions a family member, is 

falsely accused of one of society’s most heinous offenses, or, conversely, when 

one who commits such a crime would go unpunished and a possible reoccurrence 

of the act would go unprevented-appropriate safeguards are necessary. 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. [Peterson, 450 Mich at 374 (emphasis in original; 

quotation marks and citation omitted).]
-26-

Furthermore, Guertin’s opinion that it was valid to conclude that DG and KG had been 

sexually molested constituted impermissible vouching because that conclusion was not supported 

by objective medical evidence. Our Supreme Court has stated that even in the sexual assault 

context, it is “well-established that expert opinion testimony will not be excluded simply because 

it concerns the ultimate issue.” People v Smith, 425 Mich 98, 101,106; 387 NW2d 814 (1986), 

citing MRE 704.12 However, the examining physician’s opinion must be based on objective 

evidence “within the realm of his medical capabilities or expertise,” or else it is merely an 

improper opinion on the complainant’s veracity. Id. at 112-115 (holding that a doctor’s opinion 

that a complainant was sexually assaulted should not have been admitted where it was based on 

the complainant’s emotional state and self-reported history rather than on any “findings within 

the realm of his medical capabilities or expertise as an obstetrician/gynecologist” because this 

expert opinion had the effect of being an “assessment of the victim’s credibility”).

In People v McGillen #2, 392 Mich 278, 284-285; 220 NW2d 689 (1974), our Supreme 

Court held that a doctor’s opinion that penetration had occurred was improperly admitted where 

“the prosecutrix admit[ed] that a second rape occurred subsequent to the charged offense, any 

testimony the doctor may give is irrelevant and immaterial especially in view of the length of 

time that intervened between the alleged act and the physical examination.” That case involved 

defendant’s trial for the first alleged incident of sexual assault, but the doctor had only conducted 

a physical examination of prosecutrix approximately two weeks after that incident; during that 

two-week interval, the prosecutrix was sexually assaulted a second time. Id. at 281-282. In 

reaching its holding, our Supreme Court reasoned as follows:

By accepting as fact the prosecutrix’s factual history and then testifying 

that in his expert opinion the medical examination supported and was consistent 

with that history, he is lending his medical opinion to support a claim made by the 

prosecutrix that is beyond the realm of his medical capabilities and expertise. The 

doctor is not a qualified expert on the question of whether or not the prosecutrix 

was raped by the defendant on the alleged date. [Id. at 285.]

In this case, Guertin testified that his physical examination revealed injuries to the 

hymens of DG and KG that he opined were equally consistent with being caused by childhood 

sexual abuse or consensual sexual activity. The medical histories of both DG and KG indicated 

that each girl was sexually active at the time of the examinations and that each girl alleged 

instances of childhood sexual abuse. To the extent that Guertin opined that the injuries could 

have been caused by either the alleged abuse or consensual sexual activity that was part of DG’s 

and KG’s medical histories, this opinion was supported by objective medical evidence in the 

form of his physical findings and medical expertise. Guertin also adequately explained the 

justification for his conclusion that sexual abuse during the pre-pubertal stage was a “more 

likely” cause, based on his medical knowledge of female anatomy and development. However, 

Guertin had no objective medical basis from which to conclude that the “valid” conclusion was 

 12 MRE 704 provides: “Testimony in the form of an opinion or inference otherwise admissible is 

not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
-27-

that DG and KG had been “sexually molested.” By choosing one cause over the other without an 

objective medical reason, Guertin went beyond the scope of what the his medical expertise 

actually allowed and ventured improperly into the realm of inadmissible lay opinion about the 

credibility of the alleged victims allegations against defendant. Id. This was also improper 

vouching. Musser, 494 Mich at 349; Peterson, 450 Mich at 352; Buckey, 424 Mich at 17.

For the same reasons that defense counsel’s performance was deficient with respect to his 

failure to challenge Harrison’s vouching testimony, defense counsel’s performance was also 

below an objective standard of reasonableness with respect to his failure to challenge Guertin’s 

vouching testimony. Douglas, 496 Mich at 585-586. Like police officers, expert witnesses are 

prone to having their statements given a greater degree of weight by juries. Peterson, 450 Mich 

at 374.

V. CONCLUSIONS

Turning next to the prejudice prong under Strickland, defendant must show that there is a 

reasonable probability that but for counsel’s deficient performance, the outcome of the trial 

would have been different. 466 US at 694. A reasonable probability is one that is “sufficient to 

undermine confidence in the outcome,” and this standard does not require defendant to show that 

the outcome was “more likely than not” altered. Id. at 693, 694. “The result of a proceeding can 

be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel 

cannot be shown by a preponderance of the evidence to have determined the outcome.” Id. at 

694.

The instant case admittedly presents a closer question of prejudice than Douglas or Shaw. 

In both of those cases, there were no third-party witnesses to the alleged abuse and little or no 

physical evidence. Douglas, 496 Mich at 567; Shaw, 315 Mich App at 677. In this case, there 

were no eyewitnesses to any of the incidents involving penetration of DG or KG, but there was 

testimony that defendant had been seen on multiple occasions grabbing and poking DG and KG. 

Her mother also witnessed the incident where defendant grabbed DG’s chest on the couch.

However, even in the context of CSC-II, which is based on “sexual contact,” the 

prosecution must still prove that the intentional touching could “reasonably be construed as 

being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual 

manner for” revenge, inflicting humiliation, or out of anger. MCL 750.520a(q); MCL 

750.520c(1). The jurors in this case clearly did not believe all of the allegations that were made: 

they acquitted defendant of one charge and could reach a unanimous verdict on another charge. 

Considering the heightened weight that juries tend to give police officers and expert witnesses, 

Peterson, 450 Mich at 374; Musser, 494 Mich at 363, and the amount of vouching and hearsay 

evidenced admitted without objection, it is reasonably likely that that the improper vouching by 

Harrison and Guertin could have convinced the jury that at least some of the allegations were 

credible and, with respect to the CSC-II conviction, that defendant touched DG for a sexual 

purpose as opposed to some other purpose.

Such a conclusion is not mere conjecture. See Strickland, 466 US at 693 (“It is not 

enough for the defendant to show that the errors had some conceivable effect on the outcome of 

the proceeding.”). Both Harrison and Guertin were the very witnesses our Supreme Court 
-28-

alluded to in Peterson when they held: “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.” Peterson, 450 Mich at 374. While it is important 

not to minimize the significance of improperly touching another person in a sexual manner, it is 

also worth noting that the instant case also involved a substantial amount of “other-acts”

evidence related to incidents that defendant would have allegedly committed when he was a

minor as young as 12 years old. These other acts were put into evidence in order to convince the 

jury to convict defendant of criminal offenses that he allegedly committed as an adult. 

Presuming that there was no error in admitting all of this other-acts evidence,13 it would still be 

reasonable for jurors to potentially ascribe a different amount of weight or different purposes to 

the acts of a 12 year old then they might to the acts of an adult, unless there was evidence 

suggesting that they should do otherwise. Accordingly, the wrongful admission of vouching 

testimony given by a police detective and a medical expert, who opined that DG and KG had 

been “sexually molested,” could have reasonably made a difference in how the jury perceived 

the alleged victims’ claims and the intent of any acts they believed defendant committed. See 

Peterson, 450 Mich at 374; Musser, 494 Mich at 363; see also Douglas, 496 Mich at 580 (noting 

that “[w]hile credibility contests are not uncommon in criminal sexual conduct cases, the 

wrongful admission of corroborating testimony on either side could tip the scales and result in 

harmful error”) (quotation marks and citation omitted).

Contrary to my brethren in the majority, I question their reliance on People v Dobek, 274 

Mich App 58, 71; 732 NW2d 546 (2007), lv den 480 Mich 897 (2007), for the proposition that a 

jury certainly understands that a detective testifying as a prosecution witness in a criminal trial 

believes that an alleged victim is telling the truth, regardless of any impermissible vouching 

testimony that may be introduced. In my opinion, this reliance is misplaced because Dobek

involved an unpreserved claim of prosecutorial misconduct premised on eliciting the vouching 

testimony rather than a claim of ineffective assistance of counsel based on a failure to object to 

the vouching testimony. Id. at 70-71. The Dobek Court concluded that “[a]ssuming plain error, 

defendant has not established prejudice, actual innocence, or damage to the integrity of the 

judicial proceedings.” Id. at 71. When a prosecutorial misconduct claim involves an evidentiary 

issue, the focus is on “whether the prosecutor elicited the testimony in good faith.” Id. at 70-71. 

In contrast, the focus in the ineffective assistance of counsel context is on “whether [defense] 

counsel’s failure to object to the improper evidence was constitutionally deficient, and if so 

whether that failure prejudiced the defendant.” People v Randolph, ___ Mich ___, ___; ___ 

NW2d ___ (2018). Clearly, these are two very different questions. The first involves examining 

 13 See, e.g., In re Kerr, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 335000); 

slip op at 2-4 (holding that MCL 768.27a, which permits the prosecution in a criminal case 

involving a listed offense against a minor to introduce evidence that the defendant committed 

another listed offense against a minor, also applies in juvenile-delinquency trials but is still 

subject to the specific application of MRE 403 set forth in People v Watkins, 491 Mich 450; 818 

NW2d 296 (2012)). “Listed offense” means “that term as defined in section 2 of the sex 

offenders registration act . . . .” MCL 768.27a(2)(a).
-29-

the prosecutor’s actions and the second involves looking at defense counsel’s actions; whether a 

prosecutor acts in good faith while eliciting evidence does not answer the question whether a 

defense attorney’s failure to object to such evidence is below an objective standard of 

reasonableness. In Randolph, our Supreme Court explained this point in the context of 

distinguishing between the analysis applicable to unpreserved claims that the trial court erred and 

claims of ineffective assistance of counsel:

As an initial matter, the specific error that is the focus of each standard is 

different. It is the trial court’s unobjected-to error that is the subject of plain-error 

review. By contrast, the “ultimate determination” of an ineffective-assistance 

claim “is not the propriety of the trial court’s actions with regard to an alleged 

error, but whether defendant has suffered a genuine deprivation of his right to 

effective assistance of counsel . . . .” There will no doubt be occasions when both 

standards are relevant; trial counsel’s deficient performance will often result in a 

trial court error, but the claims associated with each type of error have their own 

elements and require different analyses. In evaluating a trial court’s error the 

appellate court is making one determination, and in evaluating trial counsel’s 

deficient performance, the determination is different.

The tests for each determination reflect their differences. The first two 

prongs of the plain-error standard require that an error exist and that it be obvious. 

Neither of these alone satisfies either Strickland prong. A trial court’s error does 

not tell us (1) whether counsel performed deficiently with respect to that trial 

court error or (2), if counsel’s performance was deficient, whether it prejudiced 

the defendant. The obviousness of the error, the second plain-error test element, 

is no different. While in some instances an obvious error may correlate with 

counsel’s ineffectiveness in responding to it and the prejudice resulting from that 

failure, in others instances it will not. [Id. at ___; slip op at 7-8 (citations omitted; 

ellipsis in original).]

Furthermore, with respect to the prejudice requirement under both the plain error standard and 

the ineffective assistance of counsel standard, the Randolph Court stated that “a finding that a 

defendant failed to satisfy the prejudice prong when complaining about an error by the court will 

not necessarily mean that the defendant is unable to prevail on an ineffective-assistance claim 

relating to the same underlying issue.” Id. at ___; slip op at 10. Accordingly, Dobek does not 

compel the conclusion that defense counsel in the instant case was not ineffective with respect to 

Harrison’s vouching testimony. A prosecutor could elicit improper testimony while acting in 

good faith (and thus without having committed misconduct), but it still might be constitutionally 

ineffective for defense counsel to have failed to object to that improper testimony. 

Rather than relying on Dobek, I find the decisions in Douglas and Shaw applicable. The

instant case involved a situation where the credibility of the alleged victims was of central 

importance, and seemingly objective witnesses with the authoritative positions of police 

detective and medical doctor testified in a manner that vouched for the believability of the 

alleged victims’ stories. For the above reasons, there is a reasonable probability that if defense 

counsel had objected to this vouching testimony and prevented it from being admitted, the 

outcome of defendant’s trial would have been different and the jury would not have convicted 
-30-

him as it did. The failure by trial counsel to object to the hearsay statements provided by 

Harrison and Guertin allowed those statements to be considered by the jury. The failure of trial 

counsel to allow them to present their testimony, again without objection, in a manner best 

described as human lie detectors, undermined the credibility of the verdict and denied defendant 

a fair trial. See Peterson, 450 Mich at 374; Douglas, 496 Mich at 586-588; Shaw, 315 Mich App 

at 677-678. Accordingly, I would reverse the convictions of defendant and remand the matter to 

the trial court for a new trial. 

/s/ Stephen L. Borrello