Opinion
SC 167140 COA 371064
10-04-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEREMIAH AUGUST JACKSON, Defendant-Appellant.
Sanilac CC: 23-008505-FC
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the June 5, 2024 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The stay of trial court proceedings, ordered on June 5, 2024, is DISSOLVED.
Welch, J. (dissenting).
I respectfully dissent from the Court's decision to deny leave to appeal. Instead, I would have granted leave to address the defendant's argument that "syndrome evidence" offered to explain certain victim behavior should be subject to reliability testing. Specifically, defendant asks us to reexamine our holding in People v Peterson, 450 Mich. 349, 369 (1995), and determine whether that remains good law in light of Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579 (1993), Gilbert v DaimlerChrysler Corp, 470 Mich. 749 (2004), and changes to MRE 702. I believe that defendant has raised jurisprudentially significant questions. I therefore respectfully dissent.
I. BACKGROUND
Defendant was charged with four counts of first-degree criminal sexual conduct (CSC) and two counts of second-degree CSC for alleged sexual conduct with his biological daughter, who was a minor at the time of the alleged conduct. Defendant was bound over to the Sanilac Circuit Court on all six charges, and he is presently awaiting trial. During the final pretrial conference, the prosecution filed notice of its intent to present expert witness testimony from Barbara J. Welke, a licensed master social worker, about forensic interviewing protocols and the process of disclosure in child sex abuse cases. Based upon her testimony in prior cases, defendant anticipated she would testify that child victims of criminal sexual conduct follow certain patterns of behavior, including delayed disclosure, tentative disclosure, and recantation, and that this behavior is known as "Child Sexual Abuse Accommodation Syndrome."
In response, defendant filed a motion requesting a Daubert hearing to determine the reliability of such testimony. While the trial court denied the motion, citing People v Spaulding, 332 Mich.App. 638 (2020), and People v Muniz, 343 Mich.App. 437 (2022), it did limit Welke's testimony by forbidding her from testifying that the sexual abuse occurred, vouching for the veracity of a victim, or testifying whether defendant is guilty. The trial court, following the holdings in Peterson, permitted Welke to:
Daubert, 509 U.S. 579.
(1). . . testify in the prosecution's case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim's specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and
(2). . . testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim's credibility.The trial court further prohibited Welke and any other prosecution witness from using the terms "Child Sexual Abuse Accommodation Syndrome" or "CSAAS" in their testimony, stating:
[T]his Court finds the probative value of the use of the terms "Child Sexual Abuse Accommodation Syndrome" or "CSAAS" are substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, and needlessly presenting cumulative evidence. Therefore, the terms are inadmissible in this matter.
Peterson, 450 Mich. at 352-353.
Defendant filed an application for interlocutory appeal with the Court of Appeals, seeking a stay of the trial and challenging the denial of his Daubert hearing request. The same day, defendant filed a bypass application and a motion for immediate consideration in this Court, followed the next day by a motion to stay the trial court proceedings pending appeal. The Court of Appeals denied leave, finding a failure to persuade the Court of the need for immediate appellate review. Both parties agreed to have the application for bypass to this Court turned into a traditional application for leave to appeal, and we issued an order granting the motions for immediate consideration and for stay of the trial court proceedings while the appeal remained pending. People v Jackson, ___Mich___; 6 NW3d 769 (2024). Justice Viviano dissented. After reviewing the merits of the case, this Court denied leave to appeal. As set forth below, I respectfully disagree with this decision.
II. LEGAL HISTORY OF SYNDROME EVIDENCE'S ADMISSIBILITY IN MICHIGAN
In People v Beckley, 434 Mich. 691, 721 (1990) (opinion by Brickley, J.), the lead opinion held that the then-applicable Davis/Frye test for admissibility was not applicable to behavioral sciences and thus not applicable to so-called "syndrome evidence"-meaning that such evidence could be admitted without having to be reviewed under Davis/Frye. This Court affirmed Beckley's general position in Peterson, 450 Mich. at 369, and also clarified that an expert may testify about certain behavioral characteristics recognizable in victims of child sexual abuse, id. at 352-353.
People v Davis, 343 Mich. 348 (1955); Frye v United States, 54 App DC 46 (1923); abrogation of Davis and Frye recognized by Danhof v Fahim, ___Mich___,___ (July 8, 2024) (Docket No. 163120); slip op at 12-13.
Just before Peterson, the Supreme Court of the United States decided Daubert and concluded that it was the duty of the trial judge to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589. MRE 702 was amended effective January 1, 2004, to incorporate Daubert's standards of reliability, and this Court formally adopted the Daubert standard in Gilbert, 470 Mich. 749. MRE 702 currently states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case. [Emphasis added.]Notably, Daubert's application in Michigan was not yet in place when Peterson was decided.
III. THE CONTINUED ADMISSIBILITY OF SYNDROME EVIDENCE
I believe defendant is correct that in light of Daubert/Gilbert and the changes made to MRE 702, it is now unclear whether Peterson's holding regarding the admissibility of CSAAS should remain in place. While this Court chose to deny leave in this case, several members of this Court have previously expressed concern about CSAAS and its admissibility. In 2020, this Court denied leave in People v Mejia, 505 Mich. 963 (2020), a case involving the same proposed expert here. Chief Justice McCormack dissented, questioning the admissibility of CSAAS under Daubert and calling on the Court to reconsider Peterson. Justices Bernstein and Cavanagh joined Chief Justice McCormack's statement.
More recently, this Court denied leave in People v Muniz, 513 Mich. 893 (2023). Justice Cavanagh concurred and, citing Chief Justice McCormack's statement in Mejia, once again questioned the admissibility of CSAAS evidence and invited this Court to join the CSAAS conversation. I joined Justice Cavanagh's concurrence.
As Chief Justice McCormack and defendant have pointed out, the scientific community and courts in other states have recently questioned the validity and reliability of this kind of evidence. In fact, even psychiatrist Roland Summit, who first identified CSAAS, has clarified that CSAAS was never supposed to be a diagnostic "syndrome" and, in a follow-up paper on the topic, described it as a "summary of diverse clinical consulting experience," not a "laboratory hypothesis" or "study of a defined population." Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, 1 J Child Sexual Abuse 153, 156 (1992). Like my colleagues who have written in the past on this issue, I too believe that our Court should join the other states that have reexamined the admissibility of "syndrome evidence" and assess whether Peterson is still applicable post-Daubert. For the foregoing reasons, I respectfully dissent.
See Mejia, 505 Mich. at 963-964 (McCormack, C.J., dissenting):
See, e.g., State v JLG, 234 N.J. 265, 272 (2018) (concluding that, for the most part, "it is no longer possible to conclude that CSAAS has a sufficiently reliable basis in science to be the subject of expert testimony" and therefore holding that "expert testimony about CSAAS in general, and its component behaviors other than delayed disclosure, may no longer be admitted at criminal trials"); see also King v Commonwealth, 472 S.W.3d 523, 530 (Ky, 2015) (concluding that "[t]he validity of the theory was not self-evident in 1985 and it is not self-evident today"). And as the New Jersey Supreme Court noted in JLG, 234 N.J. at 291-292, "CSAAS is not recognized in the Diagnostic and Statistical Manual of Mental Disorders and has not been accepted by the American Psychiatric Association, the American Psychological Association, or the American Psychological Society."
Cavanagh, J., joins the statement of Welch, J.