Opinion
No. 347982
12-17-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JESUS SYLVESTRE DELACRUZ, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court
LC No. 17-000027-FC Before: LETICA, P.J., and GADOLA and CAMERON, JJ. PER CURIAM.
In this interlocutory appeal by leave granted, defendant, Jesus Sylvestre DeLaCruz, appeals the trial court's sua sponte decision not to admit testimony from two expert witnesses pursuant to MRE 703. Defendant is charged with 18 counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (victim under 13 years of age), and three counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (victim under 13 years of age), involving two victims. Defendant argues that the trial court's exclusion of his experts was based on its erroneous interpretation of MRE 703, impacting his constitutional right to present a defense. We agree that the court misread MRE 703 and reverse.
The trial court stayed the proceedings pending this interlocutory appeal on February 19, 2019. We granted leave to appeal on July 9, 2019. --------
Pretrial, the trial court held a hearing on the parties' multiple motions, including the prosecutor's motion to compel discovery on February 5, 2019. In particular, the prosecution alleged that defendant's expert witness, Dr. Breanna L. O'Keefe, a medical doctor, had reviewed and based her report on: (1) documents relating to defendant's 2009 divorce, (2) defendant's 2012 ex parte request for modification of parenting time and any related order, (3) documents supporting defendant's 2012 unsupervised visitation with a victim, and (4) transcripts, reports, and documents regarding a 2012 hearing and Children's Protective Services' (CPS) investigation. Similarly, the prosecution alleged that the report of a second defense expert, Dr. David W. Thompson, indicated review of: (1) a Lansing Police Department incident report, (2) two CPS reports, (3) an amended petition for termination of parental rights, and (4) a family court petition and a related order. As the prosecutor was informing the trial court that defendant was willing to provide the discovery materials, the trial court sua sponte raised the MRE 703 issue. In part, MRE 703 provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence." The rule also explains that it "does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence" thereafter. The court interjected that it understood that the prosecutor may need these materials, but noted that "some of these things . . . may not be admissible." The prosecutor agreed with the court's observations regarding admissibility, but explained that she needed to look at the material in order to "draft [a] motion regarding their expert." The court continued:
Well, here's the thing, if the expert has reviewed them, I also have a problem with an expert reviewing inadmissible evidence because that is in violation of the court rule. It might work in the feds but not here . . . .
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The court rule talks about anything the expert reviews must be—it doesn't have to be admitted at the time of the testimony but by the end of trial, and inadmissible evidence, then, cannot be admitted and should not have been reviewed . . . .
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The rule is very clear. If [Dr. O'Keefe] has reviewed the documents, much of which you've all stated here that are not admitted, the court rule in Michigan is very clear; because it can't come in, she's reviewed it, she cannot testify as an expert. . . . I really don't care if she's qualified or not qualified to be an expert. If she's reviewed that information, she's no longer qualified in this court to testify under these court rules . . . . I've made this ruling before, . . . so that information should have been shielded from the expert . . . . She's not going to be an expert if she ruled - if she read information that is not admissible . . . .
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...The fact is if she even read one report that is not admissible, she cannot testify.
At a subsequent hearing, defense counsel indicated that Dr. O'Keefe would only be testifying about "medical findings and the lack of physical evidence . . ." and Dr. Thompson would be testifying about "forensic interviewing." Defense counsel argued that the court could "limit the testimony of Doctor Thompson and Doctor O'Keefe as it did with [the prosecution's expert]. We would ask that the court not strike their testimony in its entirety." The court responded that "they've reviewed information that shouldn't come in, and I don't know how they can extrapolate what their testimony would be in this case from what they've read and how they then testify as to what should have happened."
The prosecutor asserted that "[t]he defense went far beyond what's allowable from an expert in this particular case and had the doctor review and analyze years['] worth of records that would never be admissible, CPS records, police reports, divorce files." The prosecutor asserted that there was no hearsay exception allowing Dr. O'Keefe to testify to anything in those records. Defense counsel countered, "We're only calling her for the medical issue. We're not even getting into any area that would be arguably inadmissible." The court then ruled that it would not allow Dr. O'Keefe or Dr. Thompson to testify based on MRE 703.
I. STANDARDS OF REVIEW
We review a trial court's ruling on the admissibility of expert testimony for an abuse of discretion. People v Murray, 234 Mich App 46, 52; 593 NW2d 690 (1999). "The trial court abuses its discretion when its decision falls outside the range of principled outcomes or when it erroneously interprets or applies the law." People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014).
The rules of statutory interpretation apply to the interpretation of the Michigan Rules of Evidence and we review these questions of interpretation de novo. People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). The goal of interpretation is to give effect to the intent of the drafters, focusing initially on the plain language of the rule. Id. "When the language of the rule is unambiguous, we enforce the plain meaning without further judicial construction." Id.
II. ANALYSIS
MRE 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence. This rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence hereafter."This rule permits an expert's opinion only if that opinion is based exclusively on evidence that has been introduced into evidence in some way other than through the expert's hearsay testimony." People v Fackelman, 489 Mich 515, 534; 802 NW2d 552 (2011) (quotation marks omitted). Accordingly, a defendant must demonstrate that facts or data used to form the expert's opinion are admissible at trial. See People v Yost, 278 Mich App 341, 362-363; 749 NW2d 753 (2008). We have previously stated:
It necessarily follows that an expert witness may not base his or her testimony on facts that are not in evidence. An expert witness need not rule out all competing and alternative theories, but he or she must have a sound evidentiary basis for his or her conclusions. An expert witness's opinion is objectionable if it is based on assumptions that do not accord with the established facts. When an expert's opinion is based on assumptions that are contrary to the facts in evidence, it is technically irrelevant to the actual issues at trial. [People v Unger, 278 Mich App 210, 248; 749 NW2d 272 (2008) (citations omitted).]
Here, we conclude that the trial court's ruling misinterpreted MRE 703's plain language. The trial court read the rule as establishing a requirement that a proposed expert witness not be exposed to facts that cannot be admitted into evidence. In essence, the trial court inferred this requirement from the language of the rule that states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence." This is an erroneous inference. This rule states that the facts or data that the expert bases his or her testimony on must be in evidence. There is no indication from the plain language of this rule that all of the materials that an expert reviews must also be in evidence. MRE 703 aims to ensure that an expert has an evidentiary basis for his or her opinion and this purpose is not offended when an expert reviews inadmissible materials without factoring them into his or her opinion. See Unger, 278 Mich App at 248. In short, the rule does not impose a requirement that the expert not expose him or herself to inadmissible material, as long as he or she bases the opinion on only admissible facts or data.
We also reject the prosecution's contention that defendant has failed to account for the "likelihood" that both experts' opinions are based on inadmissible evidence that will not and cannot be admitted at trial, "in addition to whatever admissible facts and data they have formulated their opinions on." Based on this undeveloped record, the prosecution does not know that defendant's experts based their opinions entirely on inadmissible evidence. Indeed, the prosecution uses the term "likelihood" to acknowledge this fact. In fact, during the hearing, the prosecutor appeared to agree that Dr. Thompson could testify about his analysis of a forensic interview conducted in this case without running afoul of MRE 703.
The prosecution further asserts that "there is no definitive way to know with any degree [of] certainty the extent to which Dr. O'Keefe's and Dr. Thompson's opinions have now been shaped by inadmissible facts and data." But the trial court never attempted to definitively determine what facts or data the experts' testimony would be based on because it excluded them on the basis of materials they had merely reviewed. MRE 703 does not speak to how the expert's testimony is shaped; it speaks to the basis of the expert's testimony. Under the prosecution's logic, any expert who had ever reviewed a single piece of inadmissible evidence would be precluded from testifying because it could have shaped his or her testimony. As defendant notes, even if certain materials reviewed by the experts were inadmissible, this does not mean that their underlying content is inadmissible. In other words, the underlying facts or data recounted in an otherwise inadmissible document could be admissible in another form.
In sum, the trial court erroneously imposed a requirement outside of the plain language of MRE 703. Because the trial court based its decision on an erroneous interpretation of the law, it abused its discretion by excluding the defense experts' testimony.
As to Dr. O'Keefe, the trial court also excluded her proposed testimony under MRE 403 because it was cumulative to the proposed testimony of the prosecution's expert medical witness whom defense counsel could cross-examine. The trial court based its ruling on the prosecutor's on-the-record representations, adding that it would reconsider its decision if the prosecution's expert's testimony "surprise[d]" the defense. Under MRE 401, all relevant evidence is generally admissible. However, relevant evidence may nonetheless "be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403 (emphasis added). Because experts typically possess unique qualifications and our criminal justice system is adversarial, cross-examination of the opposing party's expert is simply not a substitute for the presentation of the other party's own expert. Given the prosecutor's limited offer of proof regarding its expert's proposed testimony in this CSC case, we also conclude that the trial court abused its discretion in excluding Dr. O'Keefe's proposed testimony under MRE 403 because it would not result in the "needless presentation of cumulative evidence."
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Anica Letica
/s/ Michael F. Gadola
/s/ Thomas C. Cameron