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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 28, 2015 

v No. 320095 

Tuscola Circuit Court 

JAMIE CHRISTOPHER ARNETT, LC No. 13-012824-FC 

 Defendant-Appellant. 

Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ. 

HOEKSTRA, P.J., (concurring). 

 I concur with the majority in affirming defendant’s conviction. I write separately to more 

fully explain why I agree that defendant is not entitled to a new trial based on trial counsel’s 

failure to object to the vouching testimony presented by the prosecution. 

 On appeal, defendant maintains that his trial counsel provided ineffective assistance by 

failing to object to vouching testimony from three witnesses, all of whom indicated that they 

believed the victim to be telling the truth. Specifically, the victim’s mother and grandmother 

stated that they believed the victim. Most troublingly, Amber Spencer, a witness qualified as an 

expert in the area of forensic interviewing, testified without objection, based on her “training and 

experience,” that in her opinion the victim told the truth about the abuse. 

 Because it is the province of the jury to determine the truthfulness of a witness, “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.” People v Musser, 494 Mich 337, 349; 835 NW2d 319 

(2013). Vouching testimony from an expert in cases involving criminal sexual conduct has been 

recognized as particularly troublesome. See People v Peterson, 450 Mich 349, 352; 537 NW2d 

857 (1995), amended 450 Mich 1212 (1995) (“[A]n expert may not vouch for the veracity of a 

victim.”). 

The use of expert testimony in the prosecution of criminal sexual conduct cases is 

not an ordinary situation. Given the nature of the offense and the terrible 

consequences of a miscalculation-the 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 unpreventedappropriate safeguards are necessary. To a jury recognizing the awesome 
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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.

[Id. at 374 (quotation omitted; emphasis in original).] 

 Given that vouching testimony is plainly inadmissible, it follows that counsel’s 

performance may be considered to fall below an objective standard of reasonableness when 

counsel fails to object to the admission of such testimony and there is no apparent strategy for 

failing to object. See People v Douglas, 496 Mich 557, 586; 852 NW2d 587 (2014). In cases 

where “the prosecution’s case hinged wholly on the credibility” of the victim’s allegations, given 

the influential nature of expert testimony on credibility, failure to object to vouching testimony 

may also establish that there is a reasonable probability that the outcome of the trial would have 

been different. See id. at 586-587. In Douglas, for example, the offense alleged was the 

defendant’s sexual abuse of his three-year-old daughter, and defense counsel failed to object to 

vouching testimony from three witnesses, one of whom, like Spencer in the present case, offered 

an expert opinion of the victim’s credibility. The Court in Douglas found no sound trial strategy 

for failing to object to this testimony and therefore concluded that counsel’s performance fell 

below an objective standard of reasonableness. Id. at 586. The Court also determined that 

counsel’s deficiencies prejudiced defendant. In doing so, the Court reasoned that the victim’s 

credibility was central to the prosecution’s case and the Court emphasized that there was a “lack 

of evidence beyond her allegations,” including no physical evidence whatsoever and no thirdparty witnesses to the alleged abuse. Id. at 567, 580, 587-588. 

 In this case, regarding counsel’s performance, it is difficult to conceive of a sound trial 

strategy for failing to object. The prosecution proposes on appeal that counsel’s decision not to 

object to vouching testimony may have been a reasonable strategic decision designed not to 

highlight the testimony in question.1

 While arguably this might excuse counsel’s failure to 

object to vouching by the victim’s mother and grandmother, whose testimony might have 

reasonably been viewed as less influential, it does not provide a sound basis for counsel’s failure 

to object to Spencer’s expert opinion of the victim’s credibility which was plainly inadmissible 

and highly prejudicial to defendant’s position. Cf. id. at 586-587. Accordingly, I agree with the 

majority that defendant’s counsel’s performance fell below an objective standard of 

reasonableness. 

 Nonetheless, because there is evidence in this case beyond the victim’s allegations, the 

case can be distinguished from Douglas, and defendant has not made the requisite showing of 

prejudice necessary to establish the ineffective assistance of counsel. In particular, in contrast to 

Douglas, there is some physical evidence in this case supporting the victim’s allegations of 

sexual abuse. Namely, a sexual assault nurse examiner who examined the victim observed 

lacerations on the victim’s labia minora. The nurse examiner explained that such lacerations are 

 

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 In its brief, the prosecution also suggests that counsel’s decision not to object to vouching 

testimony was reasonable because “the testimony stated nothing the average juror did not already 

presume—that the witnesses testifying for the prosecution, and witnesses related to [the victim], 

believed her.” This reasoning was rejected in Douglas, 496 Mich at 587 n 11. 
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not common in a child the victim’s age and that, though not conclusive, the lacerations were 

consistent with the victim’s report of penetration. Further, the victim reported that some of the 

assaults occurred in the bedroom that defendant shared with the victim’s mother and that 

defendant would lock the door to the bedroom during the assaults. One of the victim’s brothers 

testified that on numerous occasions the victim and defendant were in the bedroom with the door 

locked for about 10 minutes at a time. Police confirmed that the bedroom door had a lock. 

Given this evidence supporting the victim’s allegations, the present case was not a “pure 

credibility contest,” and it is not reasonably probable that the vouching testimony, while 

improper, affected the outcome of the trial. See Douglas, 496 Mich at 580, 587-588. 

/s/ Joel P. Hoekstra