Background
Robert Lee Simons was convicted by a jury of first- and second-degree criminal sexual conduct based on allegations that he repeatedly sexually abused his stepdaughter, NN, beginning when she was six or seven years old. Simons denied the allegations. The trial court sentenced him to 25 to 50 years for first-degree criminal sexual conduct and 5 to 15 years for second-degree criminal sexual conduct.
At trial, jurors submitted questions to prosecution expert Thomas Cottrell about whether children in the hundreds of sexual-abuse cases with which he had worked had fabricated their allegations. Cottrell responded that only a handful had done so and described false allegations as a “very small percentage.” Simons did not contemporaneously object, but later argued in a motion for a new trial that the testimony improperly vouched for NN’s credibility. The trial court denied the motion, reasoning that Cottrell had spoken generally rather than specifically about NN.
The Court’s Holding
The Michigan Court of Appeals held that Cottrell’s testimony constituted impermissible expert vouching. Although Cottrell did not assign a precise numerical percentage to false reports, his statements that only a handful of children had fabricated abuse and that such cases represented a very small percentage conveyed the likelihood that child complainants tell the truth. The court explained that general testimony about the rarity of fabricated allegations inferentially vouched for NN specifically.
Reviewing the unpreserved claim for plain error, the court concluded that the error was clear and affected the outcome. The trial was essentially a credibility contest between NN and Simons, with no physical evidence, eyewitnesses to the alleged assaults, or inculpatory statements by Simons. Because the expert’s testimony likely influenced the jury’s assessment of NN’s credibility and seriously affected the fairness, integrity, or public reputation of the proceedings, the court vacated both convictions and remanded for a new trial.
Key Takeaways
- An expert may not testify that children rarely fabricate sexual-abuse allegations, even without giving a precise numerical percentage.
- General testimony about the likelihood that child complainants tell the truth can impermissibly vouch for the credibility of the particular complainant.
- In a close credibility contest, improper expert vouching may warrant a new trial under plain-error review despite the absence of a contemporaneous objection.
Why It Matters
The decision reinforces Michigan’s longstanding restriction on expert testimony that effectively tells jurors how likely a sexual-abuse complainant is to be truthful. The prohibition applies to qualitative descriptions such as “very small percentage” and “only a handful,” not merely to statistical estimates.
The opinion also shows that vouching testimony may be outcome-determinative when the prosecution’s case depends primarily on the complainant’s account and the defendant’s denial. Courts must screen juror-submitted questions under the same evidentiary rules that govern questions asked by counsel.