Opinion
Docket No. 108137.
Decided December 5, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Gary L. Walker, Prosecuting Attorney, and David A. Payant, Assistant Prosecuting Attorney, for the people.
Priscilla S. Burnham, for defendant on appeal.
On February 3, 1987, defendant was charged with two counts of criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3). On March 11, 1987, a preliminary examination was held and defendant was bound over to circuit court on both counts. On March 29, 1988, the trial court granted defendant's motion to require the victim's mother, the complainant, to submit to an independent psychological evaluation. The people appeal by leave granted.
The complainant is the mother of two minor children. One born May 24, 1981, is the alleged victim of the charged incidents of criminal sexual conduct. The other born March 16, 1985, is the son of the complainant and defendant. Defendant was never married to the complainant and is not the father of the victim.
According to her testimony at the preliminary examination, the complainant and her two children lived with defendant in Marquette, Michigan, in the spring of 1985. The complainant and the children again lived with defendant in Marquette from approximately September 15, 1985, to December 15, 1985.
The complainant admitted to being an alcoholic and testified that she entered an inpatient substance abuse program from March 13, 1986, to April 3, 1986. She also testified that she had further therapy subsequent to the inpatient program and has ceased drinking.
In September, 1986, the complainant moved with the victim to Flint, Michigan. According to the complainant, the victim first told her about the charged incidents involving defendant in December, 1986. The victim allegedly told the complainant that defendant made her touch his penis and that defendant had touched her vagina. The incidents of sexual contact allegedly occurred in the winter of 1985, while the complainant was at work. At the time of the sexual contact, defendant allegedly told the four-year-old victim that he would punch her mother in the face if she told anyone.
At the preliminary examination, diagrams of an adult male and a young female were used to assist the then five-year-old victim in testifying regarding the sexual assaults. With the aid of the diagrams, the victim testified that she touched defendant's penis and that defendant touched her vagina. The victim also indicated that something white came out of defendant's penis when she touched it.
On March 11, 1987, defendant was bound over for trial in circuit court on both counts of second-degree criminal sexual conduct. On March 23, 1988, defendant filed a motion to require the complainant to submit to an independent psychological evaluation. In his motion, defendant made several arguments in support of having the complainant submit to such an examination. Defendant argued that the complainant is an alcoholic and that her ongoing problem might have a direct bearing on the allegations of sexual assault and her motives and veracity. Defendant further argued that the complainant had made prior allegations of sexual abuse and rape in Marquette County which produced an unsubstantiated claim that was ultimately dismissed by the Marquette Police. Defendant further maintained that the complainant cohabited with other men and that one of the other men had the same first name as defendant and there were reports that this other man had sexually assaulted the complainant's sister. Defendant also argued that the complainant continued to bring unfounded and unsubstantiated charges regarding defendant's treatment and care of their child because they were involved in a probate court proceeding for custody of that child.
On March 29, 1988, the trial court granted defendant's motion and entered an order requiring the complainant to make herself available for a psychological examination by a psychologist chosen by defense counsel. At the hearing on defendant's motion, it was stated on the record that there were two purposes for the examination. The first purpose was to see whether the complainant is a person who has characteristics for being a truthful or untruthful person. The second purpose was to see whether or not she is the type of person who would try to influence her child to lie about the charges of sexual assault.
On appeal, the people argue that the trial court abused its discretion in ordering a psychological examination of the victim's mother.
The trial court has discretion to order discovery in a criminal case. People v Freeman (After Remand), 406 Mich. 514, 516; 280 N.W.2d 446 (1979). This Court reviews the trial court's decision in granting or denying discovery for an abuse of discretion. Freeman, supra; People v Borney, 110 Mich. App. 490, 495; 313 N.W.2d 329 (1981).
Discovery should be granted where the information sought is necessary to a fair trial and a proper preparation of a defense; it should not be granted where to do so would be to sanction a fishing expedition. Borney, supra. In granting or denying pretrial discovery in a criminal case, the trial court should consider whether the defendant's rights can be fully protected by cross-examination. Id.
A psychological examination of a complaining witness in a criminal sexual conduct case may be ordered in certain cases, but there must a compelling reason to do so. People v Payne, 90 Mich. App. 713, 723; 282 N.W.2d 456 (1979).
In the present case, a compelling reason for ordering a psychological examination of the victim's mother, the complainant, has not been shown by defendant. Based on our review of the record, we find that defendant's motion to require the complainant to submit to the psychological examination was based on unsupported arguments made by defense counsel and that no evidence was introduced to support defendant's assertions. Furthermore, defendant's concern regarding the complainant's veracity and any motives she might have for encouraging her child to lie could properly be brought out during cross-examination.
Additionally, we find that the psychologist's evaluation might very well invade the province of the trier of fact in this case. It is well established that an expert may not render an opinion or assessment as to the veracity of a complaining witness in a criminal sexual conduct case. People v Reinhardt, 167 Mich. App. 584, 596; 423 N.W.2d 275 (1988); People v Izzo, 90 Mich. App. 727, 730; 282 N.W.2d 10 (1979), lv den 407 Mich. 935 (1979). An expert cannot be used as a human lie detector to give a stamp of scientific legitimacy to the truth or falsity of a witness' testimony. Izzo, supra.
Moreover, we note that this case involves an unusual discovery order. In most criminal sexual conduct cases involving a request for a psychological examination, the defendant requests an evaluation of the alleged victim. However, in this case, defendant requested a psychological evaluation of the four-year-old victim's mother. While such an examination might be necessary under certain extenuating circumstances, we hold that the trial court abused its discretion in ordering a psychological examination of the complainant in this case because defendant did not show a compelling reason for the examination.
This matter is reversed and remanded for further proceedings. We do not retain jurisdiction.