Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh

Elizabeth M. Welch,

Justices

Order 

August 13, 2021

159194

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 159194

COA: 338586

Eaton CC: 13-020404-FC

ERNESTO EVARISTO URIBE,

Defendant-Appellant. 

_________________________________________/

On April 8, 2021, the Court heard oral argument on the application for leave to 

appeal the January 3, 2019 judgment of the Court of Appeals. On order of the Court, the 

application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting 

leave to appeal, we REVERSE the judgment of the Court of Appeals and REMAND this 

case to the Eaton Circuit Court for a new trial.

The Court of Appeals erroneously concluded that the Eaton Circuit Court did not 

reversibly err by denying the defendant’s motion for a mistrial.1 In People v Thorpe, 504 

Mich 230 (2019), we considered the propriety and scope of expert testimony in cases 

alleging child sexual abuse.2 We held that “examining physicians cannot testify that a 

complainant has been sexually assaulted or has been diagnosed with sexual abuse without 

physical evidence that corroborates the complainant’s account of sexual assault or abuse 

because such testimony vouches for the complainant’s veracity and improperly interferes 

with the role of the jury.” Id. at 235.

 

1 Because we hold that a mistrial should have been granted, we need not address whether 

Dr. Stephen Guertin’s testimony about the complainant’s statements to him were 

admissible under the medical-treatment exception to the hearsay rule, MRE 803(4).

2 Although Thorpe was decided after the Court of Appeals decided this case, our decision 

in Thorpe was controlled by prior decisions of this Court. See Thorpe, 504 Mich at 254-

259.
2

But that is exactly what Dr. Guertin, the complainant’s examining physician, did 

on cross-examination, redirect, and recross-examination. After Dr. Guertin was asked 

whether sexual abuse was diagnosed and why his report did not diagnose the complainant 

as having been sexually abused, he shared his opinion that the complainant was a victim 

of sexual abuse. Defense counsel questioned him as follows:

Q. Now, Doctor, Dr. Guertin, I believe in prior times we’ve had 

hearings, and I believe you mentioned that sexual abuse can be a 

diagnosis.

A. Sexual abuse, physical abuse, child abuse is a diagnosis, a medical 

diagnosis.

Q. Which causes my next question, is that, in your evaluation, under 

your [a]ssessment portion of your report you never diagnose [the 

complainant] as being a victim of sexual abuse.

A. Well, I feel that the report, pretty much, speaks for itself in that 

regard. But if you’re asking me do I consider to—her to be a victim, 

I do.

Q. Well, you didn’t put that in your report, Doctor.

A. Well, it says: 

“She gives a very clear history of being sexually 

molested between the ages of five and nine. She 

indicates that the person who did this was a man...”

Et cetera.[3]

On redirect, Dr. Guertin affirmatively responded that it was his diagnosis that the 

complainant had been sexually abused, although his report had not included that 

 

3 The prosecution argues that defense counsel opened the door to Dr. Guertin’s responses 

through this line of questioning. However, the record does not support that position. 

Instead, the witness independently asserted his belief that the complainant was sexually 

abused when asked why his report did not include such a diagnosis. We have previously 

cautioned: “Opening the door is one thing. But what comes through the door is another.” 

Thorpe, 504 Mich at 253-254, quoting United States v Winston, 145 US App DC 67, 71 

(1971) (quotation marks and citation omitted). We agree with the trial court’s 

observations both that the witness “went off on his own” to make these assertions and 

that it created a problem with the witness vouching for the veracity of the complainant. 

This is especially true where the trial court had issued a pretrial order specifically 

prohibiting Dr. Guertin from providing his opinion that the complainant’s allegations 

were credible.
3

diagnosis. And again on recross-examination, Dr. Guertin continued to expand on this, 

stating: “I think it should be clear that [my report] supports that [the complainant] was 

sexually abused. And based on her history to me, I believe that she was.”

This testimony was not supported by physical evidence. Instead, Dr. Guertin 

testified that none of the potential physical evidence he found was necessarily associated 

with sexual trauma. Without physical corroboration, testimony by an examining 

physician that sexual abuse occurred impermissibly vouches for the complainant’s 

credibility and veracity. See id. at 235; see also People v Smith, 425 Mich 98, 109 

(1986). Expert testimony asserting that a child was sexually abused without any 

corroborating physical evidence not only vouches for the complainant’s credibility but 

invades the province of the jury to determine the issue of the case. Thorpe, 504 Mich at 

265. There was no physical evidence of sexual abuse or any corroborating eyewitnesses 

of such abuse. As a result, the trial became a credibility contest where the complainant’s 

credibility was chiefly important to the jury’s determination.

Instead of granting the defendant’s motion for a mistrial, the trial court attempted 

to correct the error using a curative instruction; however, such an instruction was an 

insufficient remedial measure. This kind of error is “far more pernicious than a mere 

evidentiary error.” Id. at 264. In cases with no corroborating evidence, which boil down 

to credibility contests, a jury may credit an expert’s opinion with enormous weight. See 

People v Beckley, 434 Mich 691, 722 (1990). Once the jury heard Dr. Guertin 

affirmatively and repeatedly testify that it was his opinion that the complainant was 

sexually abused, the curative instruction was insufficient to erase the prejudice suffered 

by the defendant. See, e.g., People v Terry, 489 Mich 907 (2011).

In sum, Dr. Guertin repeatedly testified to the ultimate issue of the case—whether 

the complainant was sexually abused—and this testimony lacked physical corroboration. 

Such testimony is impermissible because it vouches for the complainant’s credibility and 

veracity and invades the province of the jury to determine this issue. The curative 

instruction employed by the trial court could not erase the prejudice the defendant 

suffered by way of this testimony. Thus, the trial court abused its discretion by denying 

the defendant’s motion for a mistrial. See People v Dennis, 464 Mich 567, 572 (2001). 

Accordingly, we REVERSE the judgment of the Court of Appeals and REMAND this 

case to the Eaton Circuit Court for a new trial.

ZAHRA, J. (dissenting).

I dissent from this Court’s order reversing the decision of the Court of Appeals 

and granting defendant a new trial. Although I agree that Dr. Stephen Guertin’s 

testimony improperly vouched for the complainant’s veracity and credibility, I disagree 

with the Court’s conclusion that the trial court’s curative “instruction was an insufficient 

remedial measure . . . to erase the prejudice suffered by defendant.” For the reasons 
4

stated below, I conclude that the trial court’s prompt, well-articulated curative instruction 

was ultimately sufficient to cure the prejudice caused by Dr. Guertin’s improper opinion 

testimony and that the trial court did not abuse its discretion by denying defendant’s 

motion for a mistrial. Accordingly, I would deny leave. 

This case stems from allegations that defendant sexually abused his ex-girlfriend’s 

daughter (the complainant) when she was between the ages of five and nine years old. 

After the complainant disclosed the abuse, she was referred to Dr. Guertin—an expert in 

the areas of child sexual abuse, child abuse, and pediatric clinical care—for a medical 

examination. The complainant recounted the abuse to Dr. Guertin, who then 

memorialized her statements and his findings of the examination into a report. Before 

trial, the trial court made clear to both parties that “Dr. Guertin will not be able to testify, 

in any manner, that he . . . believed [the complainant]” and that “Dr. Guertin also is not 

going to testify that he has diagnosed her as being the victim of a sexual assault or sexual 

abuse.” Notwithstanding these directions, defense counsel asked Dr. Guertin on crossexamination why his report did not diagnose the complainant as a victim of sexual abuse. 

Dr. Guertin responded that his report “speaks for itself in that regard” and then 

volunteered his opinion that the complainant was a victim of sexual abuse. Dr. Guertin 

then repeated his opinion on recross-examination. After Dr. Guertin was excused, the 

trial court, outside the presence of the jury, raised the issue of Dr. Guertin’s testimony 

improperly vouching for the veracity of the complainant. The parties agreed to address 

the issue the next day, at which time defendant moved for a mistrial on the basis that Dr. 

Guertin had rendered an improper opinion that the complainant had been sexually 

abused. The trial court denied the motion and instead issued the following curative 

instruction regarding Dr. Guertin’s report and his opinion testimony:

Ladies and Gentlemen, yesterday, you heard the testimony of Dr. 

Guertin. Dr. Guertin’s report is not evidence because it is not admis—not 

admissible, not because of the prosecutor or the defense attorney, but 

because this Court has ruled that it is not admissible under the Rules of 

Evidence. You are not to consider the report or any statements made by Dr. 

Guertin regarding the report. You are the trier of fact and shall not consider 

evidence that has been admitted during these proceedings. 

Yesterday, you heard the testimony of Dr. Guertin. At the end of his 

testimony, you may believe that he rendered an opinion whether sexual 

assault occurred in this case. That testimony is not allowed and is stricken 

from the record.

An expert is prohibited from rendering an opinion that sexual assault 

occurred. You are not to consider any opinion that you think Dr. Guertin 

had regarding whether sexual assault occurred in this case. That is your 

decision and only your decision to make.
5

The jury heard testimony from nine other witnesses, including the complainant, 

over the course of the four-day jury trial. Defendant was ultimately convicted of four 

counts of first-degree criminal sexual conduct.4 In a split decision, the Court of Appeals 

affirmed, concluding, in relevant part, that the trial court did not abuse its discretion by 

denying defendant’s motion for a mistrial.

Dr. Guertin’s opinion that the complainant was a victim of sexual abuse 

improperly vouched for the veracity and credibility of the complainant resulting in 

prejudice to defendant. But this conclusion standing alone is legally insufficient to grant 

defendant a new trial. The dispositive inquiry is whether the trial court’s curative 

instruction cured the prejudice caused by that improper testimony such that the court did 

not abuse its discretion by denying defendant’s motion for a mistrial. A preserved, 

nonconstitutional error such as this is reviewed for harmless error under MCL 769.26, 

which provides: 

No judgment or verdict shall be set aside or reversed or a new trial 

be granted by any court of this state in any criminal case, on the ground of 

misdirection of the jury, or the improper admission or rejection of evidence, 

or for error as to any matter of pleading or procedure, unless in the opinion 

of the court, after an examination of the entire cause, it shall affirmatively 

appear that the error complained of has resulted in a miscarriage of justice.

“[T]he defendant has the burden of establishing a miscarriage of justice under a ‘more 

probable than not’ standard.”5 Further, a trial court’s decision to deny a motion for a 

mistrial is reviewed for an abuse of discretion,6 which occurs when the court’s decision 

falls outside the range of principled outcomes.7 “[T]he grant or denial of a motion for 

mistrial rests in the trial court’s sound discretion, and an abuse will be found only where 

denial of the motion deprived the defendant of a fair and impartial trial.”8

“It is well established that jurors are presumed to follow their instructions.”9 

Although this presumption may be marked more by its practicality than its certainty,10

 

4 MCL 750.520b(1)(a) (victim under 13 years of age).

5 People v Thorpe, 504 Mich 230, 252 (2019), quoting People v Lukity, 460 Mich 484, 

495 (1999).

6 People v Dennis, 464 Mich 567, 572 (2001).

7 People v Watkins, 491 Mich 450, 467 (2012).

8 People v Manning, 434 Mich 1, 7 (1990). 

9 People v Graves, 458 Mich 476, 486 (1998).

10 Richardson v Marsh, 481 US 200, 211 (1987) (“The rule that juries are presumed to 

follow their instructions is a pragmatic one, rooted less in the absolute certitude that the 
6

there is no dispute that the presumption plays an integral role in our system of justice.11 

The human element is innate in jury trials, and as a result, there are bound to be errors. 

But not all errors are beyond repair. Our criminal justice system provides numerous 

safeguards to ensure that such errors do not impede a defendant’s right to a fair trial, and 

curative instructions are one of those safeguards. An immediate curative instruction

tailored to address a specific error or instance of misconduct is often sufficient to ensure a 

fair trial,12 while some errors are too prejudicial to be cured by a jury instruction.13 Thus, 

“ ‘we normally presume that a jury will follow an instruction to disregard inadmissible 

evidence inadvertently presented to it, unless there is an overwhelming probability that 

the jury will be unable to follow the court’s instructions, and a strong likelihood that the 

effect of the evidence would be devastating to the defendant.’ ”

14

 Stated differently, a 

curative instruction will presumably alleviate the harm caused by an error or misconduct 

unless the wrong is so prejudicial that even the strongest curative instruction cannot 

counteract the prejudice to defendant, thus rendering defendant’s trial irreparably tainted 

and unfair.15 

 

presumption is true than in the belief that it represents a reasonable practical 

accommodation of the interests of the state and the defendant in the criminal justice 

process.”).

11 Marshall v Lonberger, 459 US 422, 438 n 6 (1983) (“[T]he crucial assumption 

underlying the system of trial by jury is that juries will follow the instructions given them 

by the trial judge. Were this not so, it would be pointless for a trial court to instruct a 

jury, and even more pointless for an appellate court to reverse a criminal conviction 

because the jury was improperly instructed.”) (quotation marks and citation omitted); 

Opper v United States, 348 US 84, 95 (1954) (“Our theory of trial relies upon the ability 

of a jury to follow instructions.”).

12 See People v Stevens, 498 Mich 162, 177 (2015) (“Because it is well established that 

jurors are presumed to follow their instructions, a curative instruction will often ensure a 

fair trial despite minor or brief inappropriate conduct.”) (quotation marks, citation, and 

brackets omitted).

13 Francis v Franklin, 471 US 307, 324 n 9 (1985) (“Cases may arise in which the risk of 

prejudice inhering in material put before the jury may be so great that even a limiting 

instruction will not adequately protect a criminal defendant’s constitutional rights.”).

14 Dennis, 464 Mich at 581, quoting Greer v Miller, 483 US 756, 766 n 8 (1987). 

15 See Stevens, 498 Mich at 177-178 (“Depending on the circumstances, an immediate 

curative instruction may further alleviate any appearance of advocacy or partiality by the 

judge. That said, in some instances judicial conduct may so overstep its bounds that no 

instruction can erase the appearance of partiality.”); People v Stanaway, 446 Mich 643, 

687 (1994) (explaining that courts will generally not review unpreserved claims of 

improper prosecutorial remarks unless “a curative instruction could not have eliminated 

the prejudicial effect or where failure to consider the issue would result in a miscarriage 
7

Recently, in the consolidated cases of People v Thorpe and People v Harbison, 

this Court held that the admission of expert witness testimony that improperly vouched 

for the child sexual abuse complainants’ veracity and credibility amounted to error 

requiring reversal.16 In Thorpe, an expert in the area of child sexual abuse and disclosure 

testified that only 2% to 4% of children lie about sexual abuse and then identified two 

specific scenarios in which children might lie, neither of which applied to Thorpe’s case. 

Before deliberation, the trial court instructed the jury that the expert’s testimony could 

only be used for the limited purpose of whether the complainant’s conduct after the crime 

was consistent with that of sexually abused children and could not be used as evidence of 

the crime or that the expert opined that the complainant was telling the truth.17 This 

Court did not address the efficacy of that instruction; rather, after concluding that the 

expert improperly vouched for the complainant’s credibility, we noted that the “the 

prosecution’s closing argument on rebuttal highlighted this improper evidence at a 

pivotal juncture at trial[.]”18

The single limiting instruction given to the jury before deliberation in Thorpe

bears little resemblance to the prompt curative instruction given here. Not only did the 

trial court here direct the jury not to consider Dr. Guertin’s report or any of his statements 

about the report, the court also struck Dr. Guertin’s improper opinion from the record 

entirely, directed the jury not to consider it, and informed the jury that whether criminal 

 

of justice”); Manning, 434 Mich at 8-9 (“We do not suggest that a trial court might not 

appropriately take the more drastic step of declaring a mistrial where it concludes that 

even the strongest curative instruction would be insufficient protection for a defendant.”); 

People v Hall, 396 Mich 650, 655 (1976) (“No objections or requests for curative 

instructions were made in response to the prosecutor’s closing argument, so we will 

reverse only if such instructions could not have cured any prejudice.”).

16 Thorpe, 504 Mich 230.

17 That instruction read as follows: 

You have heard Thomas Cottrell’s opinion about the behavior of 

sexually abused children.

You should consider that evidence only for the limited purpose of 

deciding whether BG’s acts and words after the alleged crime were 

consistent with those of sexually abused children.

That evidence cannot be used to show that the crime charged here 

was committed or that the defendant committed it. Nor can it be considered 

an opinion by Thomas Cottrell that BG is telling the truth. [Id. at 241 

(brackets omitted).]

18 Id. at 259.
8

sexual conduct occurred in this case was solely its decision. Also, unlike the prosecution 

in Thorpe, which used the improper opinion testimony to its advantage during closing 

arguments, the prosecution here approved of the court’s curative instruction and even 

referred to it during its closing arguments, stating, “[G]oing back to just the instruction 

you got about Dr. Guertin. That’s what that meant; you decide. It doesn’t matter what 

anybody else says. From here on out, it only matters what you say about this case.” 

Defense counsel also briefly acknowledged the special curative instruction during closing 

arguments, stating, “You had a special instruction[] about Dr. Guertin. Weigh it as you 

wish.” Finally, before the jury retired to deliberations, the trial court reminded the jury of 

“the two special limiting instructions . . . concerning Dr. Guertin.” Accordingly, the 

single instruction given to the jury before deliberation in Thorpe is quite distinguishable 

from the timely, extensive, and direct curative instruction given here, and the 

reinforcement of that instruction presented later in the case. 

Defendant argues, and this Court now concludes, that the prejudice caused by Dr. 

Guertin’s improper opinion testimony was such that the trial court’s curative instruction 

could not “erase the prejudice suffered by defendant.” Of course, “there are some 

contexts in which the risk that the jury will not, or cannot, follow instructions is so great, 

and the consequences of failure so vital to the defendant, that the practical and human 

limitations of the jury system cannot be ignored.”19 For example, juries cannot be 

expected to ignore a defendant’s confession that was later deemed inadmissible,20 nor do 

we expect them to disregard a confession in which one codefendant implicates another.21 

While the improper admission of Dr. Guertin’s testimony vouching for the complainant’s 

credibility is “far more pernicious than a mere evidentiary error,”22 nothing in our 

jurisprudence suggests the error is irreparable.

Declaring a mistrial is no small matter. “The power to discharge a jury before a 

verdict should be exercised ‘with the greatest caution, under urgent circumstances, and 

for very plain and obvious causes.’ ”

23

 Here, the trial court took every available 

 

19 Bruton v United States, 391 US 123, 135 (1968).

20 See Jackson v Denno, 378 US 368, 388-389 (1964).

21 See Bruton, 391 US at 135-137.

22 Thorpe, 504 Mich at 264.

23 People v Benton, 402 Mich 47, 60 (1977), quoting United States v Perez, 22 US (9 

Wheat) 579, 580 (1824); see also People v Hicks, 447 Mich 819, 828 (1994), quoting 

Perez, 22 US at 580 (“ ‘[T]he law has invested Courts of justice with the authority to 

discharge a jury from giving any verdict, whenever, in their opinion, taking all the 

circumstances into consideration, there is a manifest necessity for the act, or the ends of 

public justice would otherwise be defeated. They are to exercise a sound discretion on 

the subject; and it is impossible to define all the circumstances, which would render it 
9

preventive and curative measure to ensure that defendant received a fair trial. Before 

trial, the trial court informed the parties that Dr. Guertin would not be permitted to testify 

whether he believed the complainant or whether he diagnosed her as a victim of sexual 

abuse.24 After Dr. Guertin testified that he held that opinion and was excused as a 

witness, the trial court immediately raised the issue of his improper testimony sua sponte. 

The court then afforded the parties an opportunity to be heard on the matter, weighed the 

available remedies, and decided that issuing a strong curative instruction was appropriate. 

The court also reminded the jury of that instruction before deliberation. At oral argument 

before this Court, defendant’s appellate counsel conceded that there was simply nothing 

else that the trial court could have said in its instruction to the jury or could have done to 

remedy the error. Unlike the majority, I cannot conclude that the admission of Dr. 

Guertin’s improper opinion testimony, although clearly prejudicial, irreparably tainted 

defendant’s right to a fair trial in light of the trial court’s timely curative instruction, nor 

can I conclude that the trial court’s decision to issue that instruction instead of declaring a 

mistrial fell outside the range of principled outcomes. “A defendant is entitled to a fair 

trial but not a perfect one.”25

Finally, I question the ramifications of this Court’s decision today on all future 

criminal sexual conduct prosecutions. The decision notes that Dr. Guertin “repeatedly” 

gave improper testimony, but how many times must a witness repeat such testimony 

before even the strongest curative instruction will be insufficient? What if the opinion 

 

proper to interfere.’ ”). See also People v Horn, 279 Mich App 31, 36 (2008) (“A trial 

court should only grant a mistrial when the prejudicial effect of the error cannot be 

removed in any other way.”).

24 This Court largely faults Dr. Guertin for creating the problem of improperly vouching 

for the complainant’s veracity, citing the trial court’s pretrial instruction “specifically 

prohibiting Dr. Guertin from providing his opinion that the complainant’s allegations 

were credible.” However, there is no indication that Dr. Guertin was actually present 

when the court gave that instruction. Further, defense counsel was the first to mention 

Dr. Guertin’s inadmissible report by asking him whether his report diagnosed the 

complainant as a victim of sexual abuse, notwithstanding the court’s pretrial instruction. 

Counsel then continued to press Dr. Guertin about the lack of a diagnosis in his report 

even after Dr. Guertin acknowledged that his report did not contain one. Even assuming 

defense counsel did not “open the door” to Dr. Guertin’s improper opinion testimony, 

counsel is hardly blameless in contributing to the error. 

25 Bruton, 391 US at 135 (quotation marks and citations omitted). Although this Court in 

the companion case to Thorpe held that the erroneous admission of the expert’s diagnosis 

that the complainant suffered from “probable pediatric sexual abuse” amounted to plain, 

reversible error that “seriously affected the integrity of Harbison’s trial,” Thorpe, 504 

Mich at 265-266, this Court notably stopped short of stating that the error deprived 

Harbison of a fair trial under plain-error review.
10

was not repeated, or if the improper testimony was minimal in the context of the trial as a 

whole?26 One would expect to find no error. Further, defendant’s appellate counsel 

submitted during oral argument before this Court that a reversal here would not lead to 

the creation of a per se rule, maintaining that the error must always be weighed against 

the other evidence presented at trial. I question how a trial court can accomplish such a 

task midtrial when all the proofs have yet to be submitted. Must the prosecution 

rearrange its case-in-chief to ensure that, in the event such improper testimony is put 

before the jury through no fault of its own, there is sufficient evidence for the trial court 

to make a determination? This Court’s decision today ignores these concerns and fails to 

provide any meaningful guidance to the bench and the bar as to when, if ever, even a 

strong curative instruction can cure such errors.

In sum, the trial court issued a prompt, well-articulated curative instruction after 

Dr. Guertin’s improper opinion testimony, struck the improper testimony from the record, 

directed the jurors not to consider it, and informed the jurors that the decision of whether 

sexual abuse occurred was solely theirs to make. Both sides referred the jury to the 

curative instruction in their closing arguments, and the trial court reminded the jury of it 

again before deliberation. I conclude that the court’s instruction was sufficient to cure 

the prejudice caused by Dr. Guertin’s improper opinion testimony. And, given the 

careful, comprehensive steps taken by the trial court to ensure that defendant received a 

fair trial, the court’s decision to issue that instruction instead of declaring a mistrial did 

not amount to an abuse of discretion. Because this Court disagrees and grants defendant 

a new trial, I dissent.

VIVIANO, J. (dissenting).

I respectfully dissent from this Court’s order reversing the judgment of the Court 

of Appeals and remanding for a new trial. I agree that Dr. Stephen Guertin’s testimony 

improperly vouched for the complainant’s credibility and invaded the province of the 

jury. Such testimony would usually be inadmissible, but in this case the admission of 

otherwise inadmissible testimony was an invited error, as Dr. Guertin’s testimony was 

responsive to questions from defense counsel. As a result, the trial court did not abuse its 

 

26 See, e.g., People v Hawkins, ___ Mich ___ (2021) (Docket No. 161243). I dissented 

from this Court’s recent reversal in Hawkins, another child sexual abuse case in which a 

police detective gave improper opinion testimony bearing on the parties’ credibility, 

because the detective’s testimony was “sporadic and relatively minor in the context of the 

trial as a whole,” the parties did not draw further attention to it, and the prosecution did 

not use it to its advantage in closing arguments; thus, I concluded that trial counsel’s 

failure to object to the improper testimony was not outcome-determinative. Id. at ___ 

(ZAHRA, J., dissenting).
11

discretion in denying defendant’s motion for a mistrial. For these reasons, I would deny 

leave to appeal.

I. FACTS AND PROCEDURAL HISTORY

This case stems from allegations that defendant sexually molested his former 

girlfriend’s daughter (hereinafter, the complainant). The complainant had been referred 

by the police to Dr. Guertin to be examined. Defendant filed a motion in limine to 

preclude Dr. Guertin from repeating the complainant’s statements to Dr. Guertin during 

the interview and examination, arguing that the statements were inadmissible hearsay and 

not reasonably necessary for medical diagnosis or treatment under MRE 803(4).27 At the 

hearing on the motion, Dr. Guertin testified that “[c]hild abuse and sexual abuse” are 

medical diagnoses and that his diagnosis of the complainant, “based on the history that 

she gave, [was] that she was sexually abused.” The trial court concluded that the 

statements were admissible under MRE 803(4) but ruled that Dr. Guertin would not be 

permitted to opine on whether he believed that the complainant was telling the truth about 

being sexually assaulted and indicated that “Dr. Guertin also is not going to testify that he 

has diagnosed her as being the victim of a sexual assault or sexual abuse.”

At trial, Dr. Guertin testified about his interview with and examination of the

complainant. Dr. Guertin referred to his report of the examination, which contained no 

official diagnosis. On cross-examination by defense counsel regarding the lack of 

diagnosis, the following exchange took place:

Q. Now, Doctor, Dr. Guertin, I believe in prior times we’ve had 

hearings, and I believe you mentioned that sexual abuse can be a 

diagnosis.

A. Sexual abuse, physical abuse, child abuse is a diagnosis, a medical 

diagnosis.

Q. Which causes my next question, is that, in your evaluation, under 

your Assessment portion of your report, you never diagnose [the 

complainant] as being a victim of sexual abuse.

A. Well, I feel that the report, pretty much, speaks for itself in that 

regard. But if you’re asking me do I consider to -- her to be a 

victim, I do.

 

27 MRE 803(4) creates a hearsay exception for “[s]tatements made for purposes of 

medical treatment or medical diagnosis in connection with treatment and describing 

medical history, or past or present symptoms, pain, or sensations, or the inception or 

general character of the cause or external source thereof insofar as reasonably necessary 

to such diagnosis and treatment.”
12

Q. Well, you didn’t put that in your report, Doctor.

A. Well, it says:

“She gives a very clear history of being sexually molested between 

the ages of five and nine. She indicates that the person who did this 

was a man . . . ”

Et cetera.

Q. Is it -- is it true, Doctor, you did not specifically say, and diagnose 

her specifically in your report, that she’s a victim of sexual abuse?

A. Right. There’s no portion in this assessment where it says diagnosis 

is sexual abuse, that’s true.

On redirect examination immediately after that, the prosecution asked, “Is that your 

diagnosis?” Dr. Guertin answered, “Yes, it is.” On recross-examination, the following 

exchange took place between defense counsel and Dr. Guertin:

Q. Dr. Guertin, you didn’t say in your report, back when you did the 

actual assessment or evaluation, that she is diagnosed with -- as a --

as a victim of sexual abuse. Now, five years later, reflecting back, 

you’re saying that’s my diagnosis?

A. Well --

Q. Do you see where I’m having a problem with that, Doctor?

A. Actually, I don’t. So, I think the report speaks for itself. You can 

read this report, and you can see what’s said in it, you can see what 

I’ve pointed out in it. It’s true, I do not have a section --

[The Court]: Well --

[The Witness]: -- of the report that says diagnosis of child abuse.

[Defense Counsel]: Well --

[The Witness]: That doesn’t mean I can’t hold that particular 

opinion. In fact, I have held that opinion since then.

[Defense Counsel]:

Q. Well, Doctor --

A. And I’m now expressing it.

Q. Dr. Guertin, if this report was then provided to a psychologist or a 

social worker, they’re reading it -- another professional, they’re 

reading it, and they’re like where’s the diagnosis.

A. Well, there’s not a statement there that say “diagnosis: sexual 

abuse.” If you read this report and read the content of this report and 
13

what we discussed, in my opinion there would be no question that 

she’s been sexually abused. And I feel that way now, and I felt that 

way then.

Q. There’s no specific diagnosis victim of sexual abuse. But you never 

say anything in your report, victim of sexual abuse. Despite a 

diagnosis, you say nothing in your report that she’s a victim of 

sexual abuse. Now, what’s your --

A. The entire report tends to say that she’s a victim of sexual abuse. In 

fact, it says how it happened. It says the period of years in which it 

happened, gives the implication of almost how many times it 

happened. It describes whether or not she was manipulated into not 

saying anything about it, describes the circumstances of the 

disclosure. It describes the reasons why we had to test her for 

venereal disease. It describes whether or not she’s protected. It 

describes whether or not the police are aware of this.

It is true there’s not a line that says “diagnosis: sexual abuse.” But if 

you are asking my opinion, and if you read this, I think it should be 

clear that this document supports that she was sexually abused. And 

based on her history to me, I believe that she was.

After Dr. Guertin was excused, the trial court had the jury taken out and raised a 

concern about Dr. Guertin’s testimony on the ground that he had testified that sexual 

abuse occurred and that he had vouched for the veracity of the victim. Defense counsel 

moved for a mistrial, arguing that because of his expertise, Dr. Guertin telling the jury 

that he believed a sexual assault occurred could not be cured by a curative instruction. 

The prosecution argued that defense counsel opened the door to Dr. Guertin’s testimony; 

although his intent was to impeach Dr. Guertin, the fact that it did not work did not 

warrant a mistrial. The trial court initially stated that Dr. Guertin “went off on his own” 

but ultimately found that to some extent defense counsel was the one who opened the 

door and determined that it would read a limiting instruction to the jury.

The Court of Appeals affirmed defendant’s convictions in a split, unpublished 

opinion. People v Uribe, unpublished per curiam opinion of the Court of Appeals, issued 

January 3, 2019 (Docket No. 338586). Regarding the trial court’s denial of a mistrial, the 

Court of Appeals held that the trial court had not abused its discretion. The Court of 

Appeals found that defense counsel had, to some extent, opened the door to the contested 

testimony and further determined that the curative instruction the trial court gave was 

sufficient. We ordered oral argument on the application on the issue of, inter alia, 

“whether Dr. Guertin’s testimony was contrary to this Court’s decision in People v 

Thorpe, 504 Mich 230 (2019), and/or People v Harbison, 504 Mich 230 (2019)[.]” 

People v Uribe, 505 Mich 1034, 1034 (2020).
14

II. ANALYSIS

As we held in Thorpe, 504 Mich at 235, “examining physicians cannot testify that 

a complainant has been sexually assaulted or has been diagnosed with sexual abuse 

without physical evidence that corroborates the complainant’s account of sexual assault 

or abuse because such testimony vouches for the complainant’s veracity and improperly 

interferes with the role of the jury.” In general, this would preclude a physician from 

providing testimony of the nature that Dr. Guertin provided in this case. Thus, I agree 

with the majority that Dr. Guertin’s testimony was impermissible.

But under the doctrine of invited error, a party cannot seek appellate review of an 

error that is directly attributable to his or her affirmative conduct. People v Jones, 468 

Mich 345, 352 n 6 (2003).28 Thus, a defendant typically may not challenge testimony on 

appeal that he himself elicited at trial. People v Haggart, 142 Mich App 330, 337-338 

(1985); cf. People v Riley, 465 Mich 442, 448 (2001) (reaching the same conclusion, 

without using the phrase “invited error,” to prevent a defendant from challenging 

 

28 See also People v Nyx, 479 Mich 112, 128 n 43 (2007) (“[W]hen a party invites the 

error, the party waives the right to seek appellate review, and any error is extinguished.”); 

People v Griffin, 235 Mich App 27, 46 (1999) (holding that the defendant had waived 

appellate review of an issue “[b]ecause error requiring reversal cannot be error to which 

the aggrieved party contributed by plan or negligence”), overruled on other grounds in 

People v Thompson, 477 Mich 146 (2007).

The Court of Appeals majority did not use the term “invited error.” Rather, it 

characterized defense counsel’s questions as “to some extent ‘open[ing] the door’ ” for 

Dr. Guertin’s response. Uribe, unpub op at 11. The phrase “opening the door” has been 

defined as “[a]n attorney’s conduct or questions that render otherwise inadmissible 

evidence or objectionable questions admissible.” Black’s Law Dictionary (11th ed); see, 

e.g., People v Wilder, 502 Mich 57, 66 (2018) (explaining that evidence of a defendant’s 

other acts is inadmissible under MRE 404(a) unless the defendant had “opened the door 

by introducing evidence of his good character”). Some have classified “opening the 

door” as a distinct doctrine, also known as the doctrine of invited response. See, e.g., 1 

Arthur & Hunter, Federal Trial Handbook: Criminal (4th ed, December 2020 update), 

§ 28:14. Others consider “opening the door” to be the same as the doctrine of invited 

error. See, e.g., 29 Am Jur 2d, Evidence (May 2021 update), § 352. We have previously 

distinguished between invited error and invited response, see Jones, 468 Mich at 352, 

explaining that “[t]he doctrine of invited response is used as an aid in determining 

whether a prosecutor’s improper remarks require the reversal of a defendant’s conviction. 

It is used not to excuse improper comments, but to determine their effect on the trial as a 

whole,” id. at 353. Therefore, to be more precise, I use the term “invited error” to refer to 

defense counsel’s questions in this case.
15

testimony that he elicited at trial).29 “ ‘[W]here an answer is clearly responsive to the 

question asked, it falls within the “invited error” rule, and defendant may not be heard to 

object, when the answer is unfavorable.’ ” People v Collins, 63 Mich App 376, 382 

(1975) (cleaned up), quoting State v Maggard, 104 Ariz 462, 465 (1969).

Any error in Dr. Guertin’s testimony during questioning by defense counsel was 

invited error. Although the trial court denied defendant’s motion in limine and allowed 

Dr. Guertin to testify about the complainant’s statements to him, it specifically precluded 

Dr. Guertin from opining on whether he believed the complainant was telling the truth or 

testifying that he had diagnosed her as a victim of sexual assault or sexual abuse. Yet 

when Dr. Guertin testified, defense counsel repeatedly questioned him regarding the fact 

that his report contained no diagnosis, and he did so with knowledge that Dr. Guertin had, 

in fact, diagnosed the complainant as having been sexually abused, as evidenced by Dr. 

Guertin’s testimony at the earlier hearing on defendant’s motion in limine. In doing so, 

defense counsel raised the very topic that the trial court had precluded Dr. Guertin from 

testifying about at defendant’s request. It was only after being questioned by defense 

counsel on this point that Dr. Guertin testified that he thought the complainant had been 

sexually abused. Thus, the inadmissible testimony brought out on cross-examination was 

directly attributable to defendant’s affirmative conduct.

As for Dr. Guertin confirming his diagnosis on redirect examination by the 

prosecution, defense counsel had already opened the door to the topic of Dr. Guertin’s 

diagnosis. Because defense counsel’s questions about a lack of diagnosis had the 

potential to mislead the jury or create an incomplete picture, it was within the trial court’s 

discretion to allow the prosecution to clarify that point. See 29 Am Jur 2d, Evidence 

(May 2021 update), § 352 (“[A] party’s use of evidence to create an incomplete or 

misleading picture opens the door so that the opposing side may, in the court’s discretion, 

use otherwise-inadmissible evidence to complete the picture with appropriate detail.”). 

Furthermore, on recross-examination, defense counsel merely elicited similar testimony 

that confirmed Dr. Guertin’s diagnosis.

A trial court’s decision to deny a motion for a mistrial is reviewed for an abuse of 

discretion. See People v Dennis, 464 Mich 567, 572 (2001). “An abuse of discretion

 

29 See also 24 CJS, Criminal Procedure and Rights of Accused (June 2021 update), 

§ 2548 (“[A] party introducing evidence generally cannot complain on appeal that the 

evidence has been erroneously admitted.”); cf. People v Zesk, 309 Mich 129, 131-132 

(1944) (“Counsel for defendant claims that there was error in the introduction of certain 

sworn statements . . . . These statements undoubtedly had a very damaging effect. They 

were introduced, not by the prosecution, but by the attorney for defendant. He asked that 

the entire statements be introduced. No error can be complained of under the 

circumstances.”).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 August 13, 2021 

t0810

16

Clerk

occurs when the trial court’s decision is outside the range of reasonable and principled 

outcomes.” Pirgu v United Servs Auto Ass’n, 499 Mich 269, 274 (2016). Moreover, we 

have recognized that the “abuse of discretion standard acknowledges that there will be 

circumstances in which there will be no single correct outcome; rather, there will be more 

than one reasonable and principled outcome.” People v Babcock, 469 Mich 247, 269 

(2003). In this case, the trial court’s decision to deny defendant’s motion for a mistrial 

and instead read the jury a curative instruction was arguably correct—but, at a minimum, 

it was clearly a reasonable and principled outcome, and thus it was not an abuse of 

discretion. The majority pays lip service to this standard but fails to properly apply it.

For these reasons, I respectfully dissent from the majority’s order and would 

instead deny leave to appeal.