Michigan CSC Trial: Psychological and Credibility Evidence

Several different types of evidence may be admitted in a CSC trial in Michigan. Before the jury can consider any evidence, the judge must decide whether the evidence is admissible, using the Michigan Rules of Evidence. Evidence comes in two general forms: testimony by witnesses and exhibits. Either the prosecutor or the defense attorney may use both psychological evidence and credibility evidence at the trial. Both are important to present the defense’s theory of the case.

Psychological evidence includes testimony from the victim’s therapist and potentially written records from the therapy sessions. The defense attorney should focus on the observations the therapist made during the sessions and how the therapist came to his or her conclusions. Credibility evidence may be admissible in a variety of situations, but it is generally used to impeach witnesses who are testifying. Credibility evidence includes a person’s reputation in the community for being truthful, prior criminal convictions that may show that a witness is more likely to lie, prior inconsistent statements, and a witness’s bias for or against a person involved in the case, such as the accuser, the accuser’s parents, or the defendant.

Credibility Evidence in a Michigan CSC Trial

Credibility evidence comes in many forms, and attacking the credibility of a witness is called impeachment. Michigan Rule of Evidence 608 allows for the credibility of a witness to be attacked, but the evidence must be in the form of another witness testifying about his opinion of the attacked witness or the attacked witness’s reputation in the community. Under Rule 608, the testimony must only refer to the attacked witness’s character for truthfulness or untruthfulness. Additionally, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence. In other words, a witness may not testify about another witness’s reputation for truthfulness to simply bolster a witness’s credibility.

Using evidence of a criminal conviction may attack the credibility of a witness. Michigan Rule of Evidence 609 allows evidence that has been elicited from the attacked witness or established by public record during cross examination of the attacked witness. For this rule to be used, there are two types of crimes allowed. First, the evidence of a criminal conviction for a crime containing an element of dishonesty or false statement (such as perjury or embezzlement) must be admitted. Second, if a party wishes to introduce a criminal conviction that contains an element of theft (but no elements of dishonesty or false statement), the crime must be a felony conviction and the court must determine that “the evidence has significant probative value on the issue of credibility.” Furthermore, for this second type of criminal conviction to be introduced against a criminal defendant who testifies on his own behalf, the court must determine that “the probative value of the evidence outweighs its prejudicial effect.” In determining probative value and prejudicial effect, the judge will consider how old the conviction is and how relevant the conviction is to the witness’s ability to tell the truth. There is also a time limit on both types of convictions allowed into evidence under Rule 609, and convictions older than 10 years are not admissible. Finally, evidence of a conviction is not admissible under Rule 609 if the conviction has been annulled or pardoned.

Witness Credibility in a Michigan CSC Trial

A witness’s credibility can also be attacked by the use of prior inconsistent statements. If a witness gives one version of her story to the police, and then tries to tell a different story while testifying, the defense attorney may use the prior statement to impeach the witness who is testifying. However, the testifying witness must be given an opportunity to explain or deny the prior inconsistent statement.

An attorney may impeach a witness by demonstrating that a witness is biased. If the witness has a financial or familial relationship to the victim in the case, the defense attorney may question that witness about potential bias. Finally, a defense attorney may attack a witness for lack of competency, which includes both mental capacity and the witness’s ability to see, hear, or sense what he claims to have seen, heard, or sensed. If a person generally requires eyeglasses to see or a hearing aid device to hear, and if that person was not wearing them at the time they claim to have seen or heard something, the defense attorney may ask why that person was not wearing them and how it was possible to see or hear something without them.

Psychological Evidence in a Michigan CSC Trial

Psychological evidence is important to preparing the defense’s theory. The defense attorney must determine if the child accuser has seen a therapist, how many times the child has seen the therapist, and how close to the trial the child has seen the therapist. The defense attorney should also attempt to obtain any written notes from the therapist relating to the child’s statements. If the defense attorney cannot obtain the written notes, the defense attorney should at least obtain the number of meetings the child had with the therapist to establish that the child was trained to tell a particular story.

When the therapist is testifying, the defense attorney should ask questions about the timing and frequency of the child’s visits to the therapist. For example, the defense attorney should ask why the child waited so long to get treatment after the alleged abuse occurred, why the child waited until after the accused was arrested, and why the child needed to meet with the therapist so many times in the weeks leading up to the trial.

The therapist should also be questioned about the observations the therapist made during the therapy sessions. Did the therapist have the child use dolls or draw stick figures to help explain the child’s story? Did the child show remorse or discomfort while telling his or her story? Were the child’s behaviors and characteristics consistent with sexual abuse?

Therapist Evidence in a Michigan CSC Trial

The defense attorney should also ask the therapist the following questions: Did the therapist talk to adults in the child’s life, such as family members or teachers? Why or why not? If the therapist claims the child acts consistent with children who have been sexually abused, then the defense attorney should show the jury that the therapist’s conclusion is a simply a syllogism. That is, if abused children have certain characteristics, and the child exhibits these characteristics, it is not necessarily true that the child was abused. Additionally, the defense attorney should inquire about the therapist’s source of knowledge. Did the therapist compare the child to other patients of the therapist who were sexually abused? Or did the therapist simply read about other sexually abused children. The therapist may be basing her conclusions off of children who were actually abused, but it is more likely that the therapist is basing her conclusions on children who claim they were abused, or someone else claiming that the child was abused. The important aspect of this line of questioning is to convince the jury that the therapist’s conclusion is illogical.

The therapist may testify about the effects of child sexual abuse, which can include a range of behavioral and psychological problems, such as depression, anxiety, sexual dysfunction, guilt, fear, and withdrawal. The defense attorney should question the therapist about other potential causes for these psychological problems and inquire as to whether these problems are genuine or imagined by the adult or child simply to bolster the allegations.

Finally, the therapist may be able to testify about the child’s maturity level and ability to understand the consequences for telling lies. The therapist will not be able to give an opinion as to whether the child is telling the truth or not, but the therapist will be able to give an opinion about whether the child possesses the characteristics that would lead the jury to conclude that the child is sincere in his or her allegations.

The attorneys of Grabel & Associates have experience getting positive results in sex crimes cases, including sex crime trials. There are many defense strategies that can be used to defend sex crime accusations, including the use of expert witnesses. For a no-cost, confidential consultation about any sex crime allegations against you or a loved one, use the Contact Us form or call us at 1-800-883-2138 today.