                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 14, 2018
               Plaintiff-Appellee,

v                                                                    No. 334692
                                                                     Ingham Circuit Court
KEVIN ROBERT SMITH,                                                  LC No. 15-001023-FC

               Defendant-Appellant.


Before: CAMERON, P.J., and METER and BORRELLO, JJ.

BORRELLO, J. (dissenting).

        Review of this matter has led me to conclude that the primary purpose for introduction of
the majority of the testimony offered by Detective Harrison and Dr. Guertin was for the improper
purpose of vouching for the credibility of the victims in this matter. Additionally, I find that
failure by trial counsel to object to the numerous hearsay statements of Harrison and Guertin,
coupled with counsel’s failure to object to the majority of their improper vouching constituted
ineffective assistance of counsel and denied defendant a fair trial. Accordingly, I respectfully
dissent from the majority’s analysis and their legal conclusions. I would reverse defendant’s
convictions and grant defendant a new trial.

                                     I. SHAW IS RETROACTIVE

         In this case, defendant’s trial occurred over the course of eight days from May 31 to June
17, 2016. This Court’s decision in Shaw was issued on June 14, 2016. Regarding the
application of Shaw in the instant matter, the majority asserts that because the Shaw opinion was
issued during trial, “it would be difficult to hold counsel responsible for failing to object on the
basis of Shaw” and “it did not fall below an objective standard of reasonableness for counsel to
fail to object on the basis of Shaw.” However, in Shaw, this Court did not announce a “new rule”
by holding that the defendant was denied the effective assistance of counsel based on his trial
counsel’s failure to object to inadmissible hearsay testimony that amounted to improper
bolstering of the complainant’s credibility, and there is accordingly no question that this holding
has complete retroactive effect to matters, such as the instant one, still pending on direct
appellate review. Rather, this Court’s decision in Shaw involved the issue whether the defendant
was denied his right to the effective assistance of counsel, guaranteed by both the United States
and Michigan Constitutions. Shaw, 315 Mich App 668, 671-672; 892 NW2d 15 (2016); US
Const, Am VI; Const 1963, art 1, § 20. When a right protected by the United States Constitution

                                                -1-
is at issue, federal retroactivity rules are implicated. Harper v Virginia Dep’t of Taxation, 509
US 86, 89, 100; 113 S Ct 2510; 125 L Ed 2d 74 (1993) (explaining that the federal retroactivity
doctrine controls over state-law retroactivity principles with respect to matters of federal law).
However, principles of retroactivity set forth by the Michigan Supreme Court are also implicated
in this instance. “A state may accord broader effect to a new rule of criminal procedure than
federal retroactivity jurisprudence accords.” People v Maxson, 482 Mich 385, 392; 759 NW2d
817 (2008), citing Danforth v Minnesota, 552 US 264, 287-288; 128 S Ct 1029; 169 L Ed 2d 859
(2008). Moreover, Shaw is a decision by this Court that also involved application of purely
state-law principles such as the Michigan Rules of Evidence, 315 Mich App at 672-674, and the
retroactivity of judicial decisions interpreting Michigan law is determined under Michigan’s own
state-specific retroactivity standards. “A state in defining the limits of adherence to precedent
may make a choice for itself between the principle of forward operation and that of relation
backward. . . . The choice for any state may be determined by the juristic philosophy of the
judges of her courts, their conceptions of law, its origin and nature.” Great Northern R Co v
Sunburst Oil & Refining Co, 287 US 358, 364-365; 53 S Ct 145; 77 L Ed 360 (1932); see also
Harper, 509 US at 100 (acknowledging the “freedom state courts . . . enjoy to limit the
retroactive operation of their own interpretations of state law”); People v Barnes, ___ Mich ___,
___; ___ NW 2d ___ (2018) (stating that both federal and state rules govern in the retroactivity
context). Accordingly, principles of both federal and state law are relevant to resolving the issue
whether Shaw is retroactive.

        Under federal law, the United States Supreme Court has recognized the long-standing
general rule that judicial decisions have retroactive effect. Harper, 509 US at 94. More
specifically with respect to rights protected by the United States Constitution in the criminal
context, the United States Supreme Court has held “that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review
or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with
the past.” Griffith v Kentucky, 479 US 314, 316, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987).
Under Michigan law, “[t]he general rule is that judicial decisions are to be given complete
retroactive effect.” People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996) (quotation marks
and citation omitted), cert den sub nom Doyle v Michigan, 519 US 873; 117 S Ct 192; 136 L Ed
2d 129 (1996). The Michigan Supreme Court has stated that retroactive application of a judicial
decision is “problematic” if the decision is “ ‘unexpected’ and ‘indefensible’ ” in light of existing
law. Id. (citation omitted). “Complete prospective application has generally been limited to
decisions which overrule clear and uncontradicted case law.” Id. (quotation marks, citation, and
bracket omitted); accord People v Shami, 501 Mich 243, 257 n 34; 912 NW2d 526 (2018). To
determine the retroactivity of a new rule announced in a judicial decision, our Supreme Court
employs a three-part test that considers “(1) the purpose of the new rule[]; (2) the general
reliance on the old rule, and (3) the effect of retroactive application of the new rule on the
administration of justice.” People v Sexton, 458 Mich 43, 60-61; 580 NW2d 404 (1998), reh den
459 Mich 1203 (1998); cert den sub nom Young v Michigan, 525 US 1126; 119 S Ct 912; 142 L
Ed 2d 909 (1999), reh den 526 US 1095; 119 S Ct 1514; 143 L Ed 2d 665 (1999).

        However, our Supreme Court first considers the threshold question whether a holding in a
judicial decision constitutes a “new” rule before it applies the three-part retroactivity test:
“Before any question of the retroactive application of an appellate decision arises, it must be
clear that the decision announces a new principle of law.” People v Phillips, 416 Mich 63, 68;

                                                -2-
330 NW2d 366 (1982) (emphasis added). “A rule of law is new for purposes of resolving the
question of its retroactive application . . . either when an established precedent is overruled or
when an issue of first impression is decided which was not adumbrated by any earlier appellate
decision.” Id. If the holding in a judicial decision is merely the product of applying existing
statutory authority and established precedent to the facts of the case, then that holding does not
constitute the resolution of an issue of first impression that was not clearly foreshadowed. Id. at
73, 75. The holding of a judicial decision has retroactive effect if that holding did not announce
a new rule. Doyle, 451 Mich at 95, 101, 103-104, 113; Phillips, 416 Mich at 65-66, 75. “If a
rule of law announced in an opinion is held to operate retroactively, it applies to all cases still
open on direct review.” W A Foote Mem Hosp v Michigan Assigned Claims Plan, 321 Mich App
159, 176; 909 NW2d 38 (2017).

        In Shaw, this Court held that the defendant, who had been convicted of nine counts of
first-degree criminal sexual (CSC-I) conduct and acquitted of one additional count of CSC-I,
received ineffective assistance of counsel based on his trial counsel’s failure to object to multiple
hearsay statements that essentially bolstered the complainant’s credibility and that came in at
trial through the testimony of the complainant’s family members, the police detective who
conducted a forensic interview of the complainant, and the doctor who conducted a medical
examination of the complainant. 315 Mich App at 671-674, 676-678. The hearsay statements
recounted the complainant’s out-of-court descriptions of the sexual abuse allegedly committed
by the defendant. Id. at 673-674, 676.

         In reaching the conclusion that the failure to object to these statements constituted
deficient performance that prejudiced the defendant such that defendant was denied his right to
the effective assistance of counsel, the Shaw Court applied Michigan Rules of Evidence related
to hearsay, id. at 672-674, citing MRE 801, MRE 802, and MRE 803(4), as well as the rule that
“ ’[i]n a trial where the evidence essentially presents a one-on-one credibility contest between the
victim and the defendant, hearsay evidence may tip the scales against the defendant, which
means that the error is more harmful,’ ” Shaw, 315 Mich App at 673, quoting People v Gursky,
486 Mich 596, 620-621; 786 NW2d 579 (2010). Furthermore, the Shaw Court was concerned
about how the testimony of the detective and the doctor amounted to bolstering the credibility of
the complainant in a case where the complainant’s credibility was of central importance. Shaw,
315 Mich App at 674, 676-678. However, the Shaw Court did not actually cite any specific legal
authority for the proposition that a witness may not vouch for the credibility of another witness;
the Shaw Court merely assumed this principle. Id.

         With respect to the detective, the Shaw Court noted that she testified about the
complainant’s statements and further testified “extensively” about how she was able to
“confirm[] numerous background facts that the complainant reported to her,” how she was able
to “confirm the veracity” of statements made by the complainant, and how she was able to
corroborate the complainant’s statements before charges were filed. Id. at 676. The Shaw Court
reasoned that the detective effectively “concluded that the complainant was credible and so
advised the jury.” Id. With respect to the doctor who examined the complainant, the Shaw Court
noted that the doctor “recounted in detail the complainant’s statements to him about the abuse,”
testified that he believed the complainant’s allegations on the basis of her medical history, and
testified that he “believed that his physical findings were consistent with someone who had
suffered child sexual abuse.” Id. at 674, 678. The Shaw Court concluded that the defendant’s

                                                -3-
trial counsel performed deficiently by failing to object to the inadmissible hearsay testimony of
the detective and the doctor because there was no reasonable basis to conclude that it would be
strategically advantageous to permit highly damaging hearsay testimony in order to point out
minor factual inconsistencies in the complainant’s statements. Id. at 675-677, 677 n 3. Finally,
the Shaw Court concluded that there was a reasonable probability that outcome of the trial would
have been different had the defendant’s trial counsel objected to this testimony because the
complainant’s version of events was repeatedly presented to the jury and was done so by the
detective and the doctor who essentially gave the complainant’s story “an official stamp of
approval” and bolstered her credibility. Id. at 677-678.

         These conclusions were the result of applying pertinent Michigan Rules of Evidence and
established precedent involving issues of hearsay, improper vouching for the credibility of
another, and ineffective assistance of counsel. Although the Shaw Court did not provide a
citation for the principle that a witness may not vouch for the credibility of another witness, this
rule is nonetheless well established. Our Supreme Court has made clear that “it is improper for a
witness or an expert to comment or provide an opinion on the credibility of another person while
testifying at trial” because “[s]uch comments have no probative value” and “do nothing to assist
the jury in assessing witness credibility in its fact-finding mission and in determining the
ultimate issue of guilt or innocence.” People v Musser, 494 Mich 337, 349; 835 NW2d 319
(2013) (quotation marks and citation omitted). Moreover, “child-sexual-abuse cases present
special considerations given the reliability problems created by children’s suggestibility.” Id. at
357 (quotation marks and citation omitted). And our Supreme Court has “condemned opinions
related to the truthfulness of alleged child-sexual-abuse complainants,” specifically noting that
“in cases hinging on credibility assessments, . . . the jury is often ‘looking to “hang its hat” on
the testimony of witnesses it views as impartial.’ ” Id. (citation omitted).

        Because the Shaw Court merely applied established law to the facts of the case in
reaching the conclusions discussed above, its holding related to those issues has retroactive effect
under the federal retroactivity standard. Griffith, 479 US at 324 & n 10. For the same reason, its
holding did not constitute the resolution of an issue of first impression that was not clearly
foreshadowed under the Michigan retroactivity standard. Phillips, 416 Mich at 68. The above
conclusions reached by the Shaw Court also did not involve the overruling of established
precedent. Accordingly, a new rule was not announced, and this holding of Shaw has retroactive
effect under state law as well. Doyle, 451 Mich at 95, 101, 103-104, 113; Phillips, 416 Mich at
68.

        Further, the fact that Shaw was decided during the course of defendant’s trial does not
negate the applicability of Shaw to this Court’s resolution of the instant case. It was already well
established that a witness cannot vouch for the credibility of another witness. Musser, 494 Mich
at 349. While defense counsel may not have been able to specifically cite Shaw in objecting to
testimony that occurred during defendant’s trial before the decision in Shaw was issued, defense
counsel certainly could have objected to testimony that constituted improper vouching for the
credibility of other witnesses. Thus, the issue is really whether defense counsel was
constitutionally ineffective by failing to object to the testimony of Harrison and Guertin on the
ground of improper vouching, not whether he was ineffective by failing to object on the ground
of “Shaw.”


                                                -4-
                                   II. IMPROPER VOUCHING

        There can be little doubt that it is difficult to show that a conviction must be reversed
based on a claim of ineffective assistance of counsel. In order to prevail on appeal, a defendant
must demonstrate (1) that counsel’s performance was deficient and (2) that the defense was
prejudiced by counsel’s deficient performance. Strickland v Washington, 466 US 668, 687; 104
S Ct 2052; 80 L Ed 2d (1984), reh den 467 US 1267; 104 S Ct 3562; 82 L Ed 2d 864 (1984);
Riley, 468 Mich at 140. Satisfying the first prong requires a defendant to show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. Strickland, 466 US at 688; Riley, 468 Mich at 140. Satisfying the second prong requires
a defendant to show that but for counsel’s unprofessional errors, there is a reasonable probability
that the result of the proceeding would have been different. Strickland, 466 US at 694; see also
People v Trakhtenberg, 493 Mich 38, 55-56; 826 NW2d 136 (2012). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694.

        A defendant making an ineffective assistance of counsel claim “must overcome the
strong presumption that counsel’s performance was born from a sound trial strategy.”
Trakhtenberg, 493 Mich at 52. However, “a court cannot insulate the review of counsel’s
performance by calling it trial strategy.” Id. Trial strategy “in fact must be sound, and counsel’s
decisions as to it objectively reasonable.” People v Douglas, 496 Mich 557, 585; 852 NW2d 587
(2014). When reviewing an ineffective assistance claim, “the ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose result is being challenged,” and “[i]n every
case the court should be concerned with whether, despite the strong presumption of reliability,
the result of the particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.” Strickland, 466 US at 696.

       In this case, the primary concern to address regarding the testimony of Harrison is
whether she impermissibly vouched for the credibility of the two alleged victims and their
mother, and, whether she was able to do so without objection.

        “It is ‘[t]he Anglo–Saxon tradition of criminal justice . . . [that] makes jurors the judges
of the credibility of testimony offered by witnesses.’ ” Musser, 494 Mich at 348-349 (citation
omitted). Because the task of judging the credibility of witnesses’ testimony is one that is
reserved for the jury, “it is improper for a witness or an expert to comment or provide an opinion
on the credibility of another person while testifying at trial.” Musser, 494 Mich at 349. This
concept is well established in Michigan jurisprudence. See, e.g., People v Buckey, 424 Mich 1,
17; 378 NW2d 432 (1985) (noting the general rule that it is “improper for a witness to comment
or provide an opinion on the credibility of another witness since matters of credibility are to be
determined by the trier of fact”); People v Row, 135 Mich 505, 507; 98 NW 13 (1904)
(concluding that that the trial court erroneously allowed a witness to testify to being satisfied that
the alleged victim of a sexual assault told the testifying witness “the truth” about what the
defendant had done); People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975) (noting “the
settled and long-established rule that a witness cannot express an opinion concerning the guilt or
innocence of a defendant”). Our Supreme Court has explained that a witness’s testimony
commenting on the credibility of another individual has “no probative value because they do
nothing to assist the jury in assessing witness credibility in its fact-finding mission and in
determining the ultimate issue of guilt or innocence.” Musser, 494 Mich at 349 (quotation marks

                                                 -5-
and citations omitted). Consequently, such testimony is “considered ‘superfluous’ and . . .
‘inadmissible lay witness [ ] opinion on the believability of a [witness’s] story’ because the jury
is ‘in just as good a position to evaluate the [witness’s] testimony.’ ” Id. (citation omitted;
brackets in original).

        In Musser, our Supreme Court held that under the facts of that particular case, “the trial
court abused its discretion by failing to redact the majority of the detectives’ out-of-court
statements commenting on [the] credibility [of the complainant and child victims generally] from
the recording [of the defendant’s police interrogation] that was played to the jury because [the
detectives’ statements] were irrelevant to their offered purpose of actually providing context to
defendant’s statements.” Musser, 494 Mich at 339, 343, 351, 365-366. The Musser Court
further held that these errors undermined the reliability of the verdict, and it vacated the
defendant’s convictions for second-degree criminal sexual conduct and assault and battery that
had arisen out of allegations made by an eleven-year-old girl. Id. at 339, 366.

        In People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995), our Supreme Court
clarified “the proper scope of expert testimony in childhood sexual abuse cases.” The Peterson
Court held that an expert witness (1) “may not testify that the sexual abuse occurred,” (2) “may
not vouch for the veracity of a victim,” and (3) “may not testify whether the defendant is guilty.”
Id. at 352.1 However, the Peterson Court further held that an expert witness may properly testify
“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 that an expert may also 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.” Id. at 352-353. Notably, although
the Peterson Court phrased its holding broadly in terms what was permissible and impermissible
for an “expert” to testify about, the Peterson Court only specifically analyzed the use of expert
testimony about common behaviors in child-sexual-abuse victims; the Court loosely referred to
this type of evidence as “syndrome” evidence. Id. at 362, 369-371, 373-375.

        In Douglas, 496 Mich at 561, 566, our Supreme Court concluded that the defendant, who
had been convicted of first-degree and second-degree criminal sexual conduct based on the
alleged abuse of his then-three-year-old daughter, was entitled to a new trial on the ground that
he had received ineffective assistance of counsel due to his trial counsel’s failure to object to the
testimony of witnesses that constituted improper vouching for the credibility of the alleged
victim. At the defendant’s trial, a detective sergeant testified to the content of a conversation
between the alleged victim’s mother and the defendant in which the alleged victim’s mother
recounted the allegation made by the alleged victim and told the defendant, “I know my daughter
don’t lie; why is she making these allegations then.” Id. 561, 563, 568. Additionally, the
forensic interviewer who interviewed the alleged victim was qualified as an expert and testified,
as pertinent to the instant case, about the content of the interview and that she “considered



1
 In reaching this holding, the Peterson Court explained that it was reaffirming its holding from
People v Beckley, 434 Mich 691; 456 NW2d 391 (1990).


                                                -6-
whether there had been a misunderstanding, but determined there was not because [the alleged
victim] was ‘very clear’ about what happened.” Id. at 563, 569. The forensic interviewer further
opined that the alleged victim had not been coached and that she believed that the alleged victim
“ ‘was being truthful with [her]’ during the interview.” Id. at 570 (brackets in original). Finally,
a CPS worker testified that she had filed a petition to initiate child-protective proceedings after
interviewing the alleged victim’s mother and observing the forensic interview. Id. The CPS
worker further testified that she would not seek such a petition if she believed that a child was
lying or if she had not substantiated that the alleged conduct had occurred. Id. The CPS worker
also testified that she substantiated the alleged victim’s allegations through her own investigation
and that there was no indication in the forensic interview disclosures that the alleged victim had
been coached or untruthful. Id. The defendant’s trial counsel did not object to any of this
testimony on the ground of improper vouching. Id. at 569, 570.

        In addressing the defendant’s claim of ineffective assistance of counsel, the Douglas
Court determined that the testimony of the CPS worker regarding her conclusions that the
allegations had been substantiated and that the alleged victim had not been coached or untruthful
“violated the well-established principle that ‘it is improper for a witness or an expert to comment
or provide an opinion on the credibility of another person while testifying at trial.’ ” Id. at 583,
quoting Musser, 494 Mich at 349. The Douglas Court further determined that the forensic
interviewer’s testimony also violated this prohibition on vouching when she offered her expert
opinions that the alleged victim was being truthful and had not been coached. Douglas, 496
Mich at 583. The Court also determined that the detective sergeant’s testimony about the
statement of the alleged victim’s mother constituted improper vouching. Id. at 584, 586.

        The Douglas Court concluded that the defendant’s trial counsel performed below an
objective standard of reasonableness by allowing the above testimony to come in at trial without
objecting. Id. at 585-586.2 Noting that counsel’s trial strategy must be actually “sound” and
carried out through objectively reasonable decisions, as well as the rule that “ ‘a court cannot
insulate the review of counsel’s performance by calling it trial strategy,’ ” the Douglas Court
reasoned that there was “no sound strategy in counsel’s failure to object to the vouching
testimony.” Id. (citation omitted).

        The Douglas Court further concluded that there was a reasonable probability that the
outcome of the defendant’s trial would have been different but for the deficient performance of
the defendant’s trial counsel. Id. at 586. The Court reasoned as follows:

       As already discussed, the prosecution’s case hinged wholly on the credibility of
       [the alleged victim’s] allegations, making defense counsel’s success in
       undermining that credibility all the more critical. Rather than pursuing this


2
  Similar to the record in this case, the Douglas Court did note that the defendant’s trial counsel
had initially made a successful challenge to the prosecution’s “attempt to elicit an expert
conclusion from [the forensic interviewer] regarding the veracity of [the alleged victim’s]
statements” but then “inexplicably permitted that testimony without objection.” Douglas, 496
Mich at 570, 585.


                                                -7-
         strategy vigilantly, defense counsel permitted . . . three figures of apparent
         authority and impartiality, with direct involvement in and knowledge of the
         investigation leading to the defendant’s prosecution—to present testimony
         improperly reaching the key factual issue before the jury: whether [the alleged
         victim] was telling the truth. [The forensic interviewer’s and CPS worker’s]
         commentary was especially prejudicial in this regard—the former offering the
         jury an expert opinion regarding [the alleged victim’s] credibility in the instant
         case, and the latter offering the jury her, and CPS’s, professional assessment of
         the veracity and substantiation of [the alleged victim’s] complaints. We cannot
         overlook the influence such testimony may have in a case such as this. See
         Musser, 494 Mich at 357-358 (noting that, “given ‘the reliability problems created
         by children’s suggestibility,’ ” this Court “has condemned opinions related to the
         truthfulness of alleged child-sexual-abuse complainants” because the jury in such
         credibility contests “is often ‘looking to “hang its hat” on the testimony of
         witnesses it views as impartial’ ”), quoting Peterson, 450 Mich at 371, 376.
         Given the centrality of [the alleged victim’s] credibility to the prosecution’s case,
         the lack of evidence beyond her allegations, and the nature of the testimony
         offered by [the forensic interviewer, CPS worker, and detective sergeant], we
         believe it reasonably probable that, but for this testimony, the outcome of the
         defendant’s trial may have been different. See Musser, 494 Mich at 363–364.
         [Douglas, 496 Mich at 586-588.]

The Douglas Court granted the defendant a new trial on the basis of his ineffective assistance of
counsel claim.3

        Furthermore, as previously discussed, this Court held in Shaw, 315 Mich App at 672-674,
676-678, that the defendant received ineffective assistance of counsel based on his trial counsel’s
failure to object to multiple hearsay statements that essentially bolstered the complainant’s
credibility and that were introduced at trial through the testimony of the complainant’s family
members, the police detective who conducted a forensic interview of the complainant, and the
doctor who conducted a medical examination of the complainant.4 The hearsay statements
recounted the complainant’s out-of-court descriptions of the sexual abuse allegedly committed
by the defendant. Id. at 673-674, 676. The Shaw Court was also concerned about how the
testimony of the detective and the doctor amounted to bolstering the credibility of the
complainant in a case where the complainant’s credibility was of central importance. Shaw, 315
Mich App at 674, 676-678.



3
  The Douglas Court also concluded that the trial court had committed independent reversible
error by admitting certain out-of-court statements by the alleged victim about the abuse, which
were made during her forensic interview, to be admitted. Douglas, 496 Mich at 566. But the
Court explained that the “trial court’s error and defense counsel’s deficient performance were
each sufficiently prejudicial to require a new trial.” Id. (emphasis added).
4
    Notably, Guertin was also the doctor involved in Shaw. 315 Mich App at 673.


                                                 -8-
         As previously discussed, the Shaw Court noted with respect to the detective that she
testified about the complainant’s statements and further testified “extensively” about how she
was able to “confirm[] numerous background facts that the complainant reported to her,” how
she was able to “confirm the veracity” of statements made by the complainant, and how she was
able to corroborate the complainant’s statements before charges were filed. Id. at 676. The
Shaw Court reasoned that the detective effectively “concluded that the complainant was credible
and so advised the jury.” Id. With respect to the doctor who examined the complainant, the
Shaw Court noted that the doctor “recounted in detail the complainant’s statements to him about
the abuse,” testified that he believed the complainant’s allegations on the basis of her medical
history, and testified that he “believed that his physical findings were consistent with someone
who had suffered child sexual abuse.” Id. at 674, 678. The Shaw Court concluded that the
defendant’s trial counsel performed deficiently by failing to object to the inadmissible hearsay
testimony of the detective and the doctor because there was no reasonable basis to conclude that
it would be strategically advantageous to permit highly damaging hearsay testimony in order to
point out minor factual inconsistencies in the complainant’s statements. Id. at 675-677, 677 n 3.
Finally, the Shaw Court concluded that there was a reasonable probability that outcome of the
trial would have been different had the defendant’s trial counsel objected to this testimony
because the complainant’s version of events was repeatedly presented to the jury and was done
so by the detective and the doctor who essentially gave the complainant’s story “an official
stamp of approval” and bolstered her credibility. Id. at 677-678.

        First, in defining the type of testimony that constitutes impermissible vouching
testimony, it is clear that a witness cannot explicitly testify that another witness was truthful or
was lying. Douglas, 496 Mich at 583-584; Musser, 494 Mich at 349; Buckey, 424 Mich at 17;
Row, 135 Mich at 507. However, determining whether testimony is vouching in nature is not
limited to whether a witness used certain magic words related to truth, lying, credibility, or the
like. The Douglas Court, in concluding that the CPS worker impermissibly vouched for the
alleged victim’s credibility, specifically referred to the fact that the CPS worker had testified that
her investigation had led her to find that the alleged victim’s allegations were substantiated.
Douglas, 496 Mich at 583. Furthermore, this Court reasoned in Shaw that the detective
essentially informed the jury that she had determined that the complainant was credible because
the detective testified about how, through her investigation, she “confirmed numerous
background facts” reported to her by the complainant and confirmed the veracity of various
statements by the complainant before filing charges. Shaw, 315 Mich App at 676.

        Assessing the credibility of witnesses is a task that is firmly within the province of the
jury; accordingly, is no probative value in permitting a witness to testify about the credibility of
another witness because such testimony does not aid the jury in its task of judging credibility and
“the jury is ‘in just as good a position to evaluate’ ” the believability of a witness’s story.
Musser, 494 Mich at 348-349 (citation omitted). In other words, “[w]here a jury is as capable as
anyone else of reaching a conclusion based on certain facts, it is error to permit a witness to
reason from those facts to a conclusion,” and “[b]y allowing such testimony, the province of the
jury [is] invaded.” People v Walker, 40 Mich App 142, 143-145; 198 NW2d 449 (1972)
(concluding that where there was conflicting evidence about whether the gun that fired the fatal
shot was held at the time of the shooting by individual positioned near the defendant and an
eyewitness had testified about the respective positions of the defendant and the other individual
at the time of the shooting, the trial court erred by permitting the prosecutor to elicit testimony

                                                 -9-
from the eyewitness “regarding which individual could have fired the fatal shot given the point at
which the fatal bullet entered decedent’s body”). This rationale was explained as follows by our
Supreme Court more than a century and a half ago:

              It is also an elementary rule that, where the court or jury can make their
       own deductions, they shall not be made by those testifying. In all cases, therefore,
       where it is possible to inform the jury fully enough to enable them to dispense
       with the opinions or deductions of witnesses from things noticed by themselves,
       or described by others, such opinions or deductions should not usually be
       received. [Evans v People, 12 Mich 27, 34 (1863).]

        Thus, the rule that can appropriately be derived is that is improper credibility vouching to
allow a witness to testify about how he or she personally confirmed various elements of another
witness’s story or about why another witness’s story is plausible or logical. Such testimony
essentially connects the dots for the jury from evidence to conclusion via one witness’s
explanation of how another witness’s testimony has been corroborated and, by extension, and the
witness’s veracity confirmed. This kind of vouching testimony, rather than simply asserting that
another individual told the truth, instead functions as an attempt to get the jury to substitute the
witness’s reasoning or personal investigation for the jury’s own evaluation of another witness’s
credibility.

                        III. TESTIMONY OF DETECTIVE HARRISON

        Applying the above legal principles to Harrison’s testimony, Harrison improperly
vouched for the credibility of DG and KG. As previously stated, Harrison conducted forensic
interviews of both DG and KG during the course of investigating the allegations in this case, and
she was called as a witness by the prosecution. During her direct examination, Harrison testified
extensively about the nature of the forensic interview process and Michigan’s forensic
interviewing protocol, as well as her specialized training for investigating child sexual abuse
cases and conducting forensic interviews. More specifically, she testified that Michigan’s
forensic interviewing protocol was developed “to assist us in the best techniques for interviewing
children”; that she primarily investigates cases of child sexual abuse; and that in these cases, her
“job is to thoroughly investigate and determine if it should or shouldn’t be forwarded to the
Prosecutor’s office for review.” The prosecutor also questioned Harrison on direct examination
as follows:

              Q. I want to talk to you a little bit about forensic interviewing. Could you
       please tell the jury what is forensic interviewing? How does it differ from a
       normal interview?

               A. The goal for a forensic interview is to obtain a statement from a child
       in an unbiased developmentally appropriate neutral way, to assist in criminal
       justice and child welfare systems. What that really means, the word “forensic” is
       research-based or scientific. The State of Michigan developed the protocol based
       on research to help us as every day professionals on the do’s and don’ts of how to
       interview a child, what the best practice is.


                                               -10-
         Harrison testified that she used the forensic interview protocol in her interviews of DG
and KG in this case, although they were 18 years old at the time. Harrison also indicated that the
initial phase of the forensic interview includes obtaining “a promise to tell the truth” from the
interviewee. Additionally, Harrison explained that in a forensic interview, “we develop alternate
hypotheses to look at different possibilities,” that the alternate hypotheses are tested through
questioning in the interview, and that “[i]t’s a fact-gathering mission to look at all the
possibilities, minimize suggestibility.” Harrison stated, “There can’t be any misunderstandings,”
and “[w]e need to make sure that we are getting the allegations correct, that we’re looking to see
what other possibilities are.” According to Harrison, two alternate hypotheses were developed:
(1) that there was a misunderstanding regarding whether there was actually a sexual touch and
(2) that one of the involved parties was lying or that only one of the twins was abused. Harrison
tested these hypotheses in her interviews of DG and KG. When the prosecutor asked Harrison if
she was “able to eliminate any of the hypotheses or come to any conclusions,” defense counsel
objected “to any conclusions” on the ground that the prosecutor was “essentially asking her to
determine what the truth was of what their allegations are.” The prosecutor withdrew the
question. However, shortly thereafter, Harrison testified that during the interview, she “look[s]
for details of the act that would determine whether this is a sexual or non-sexual touch or
whether it was a misunderstanding. The prosecutor followed up by questioning Harrison as
follows without objection from defense counsel:

              Q. At the end of your interview, is your investigation complete if you
       eliminated certain alternate hypotheses, is that the end of your investigation?

               A. No.

               Q. All right. So are you able to eliminate alternate hypotheses, or any of
       the hypotheses during your actual interview process? Were you able to, in this
       particular case?

               A. Well, I mean, my job is to gather the facts. So I, during the forensic
       interviews of both K[G] and D[G]—let’s see how to answer that. There are times
       in which there is a misunderstanding. So then the case ends at that point.

              After the forensic interview, the allegation, itself, which had been reported
       to me, was that [defendant] had sexually abused K[G] and D[G] [], that was still
       standing at the end of the interview. So I continued the investigation.

               Q. You weren’t concluding at the end that they had been abused, but
       rather that’s where your investigation is now targeted?

               A. Correct.

             Q. Were you able to address the alternate hypotheses [sic] that it was a
       misunderstanding?

               A. Yes.

               Q. How did you do that?

                                              -11-
              A. Well, they were clear—so I asked questions and they provided clear
       statements to me. So it’s not a misunderstanding at that point.

               Q. All right. And how about the allegation that one was abused and not
       the other?

               A. They both provided clear disclosures.

                Q. At that point you were left with that it actually happened or that it was
       a lie, correct?

               A. Correct.

               Q. You are not able at that point to eliminate the lie?

              A. Well, a portion of it. So part of that could be, does the reporting
              [5]
       source have a motivation, or is the reporting source lying. And so I develop
       questions during the interview as who is the first person that you told. So if they
       told somebody prior to the reporting source, then that helps me with that.

Defense counsel did not object to the above testimony or otherwise renew his previous objection.
Harrison also testified that she needed to go the scene of the incidents described in a forensic
interview “to see if that is possible” and to see “the viewpoint of witnesses” in order to “put
[herself] in that situation to then get additional leads or information that [she] can follow up and
gather those facts to bring.” Harrison would take photographs while at a given location.
Although not specifically referenced by defendant in his appellate argument, Harrison also
offered the following testimony during her direct examination, to which there was no objection
and in which she essentially explained to the jury why she thought the description given by DG
and her mother of the incident where defendant allegedly grabbed DG’s chest made sense:

               Q. Again, we are using this photograph, just kind of a way as an example.
       But this photograph, in and of itself, does it provide for you and your
       investigation any corroboration of what you were told?

               A. Yes. I need to understand if what’s being reported to me is possible.
       That’s why, even if a crime had occurred decades prior, I always make it as a rule
       to go back to visit that scene, whether it’s changed or evolved or not, whether the
       furniture is the same or different, or the walls are even different. I still need to go
       to document it to see what I find to see where the facts lead.


5
  In this case, it appears that DG’s mother would have been the “reporting source”: Harrison
testified that when she began working on this case, her “first contact had been with [the mother]”
who had contacted law enforcement and whose “twin daughters had disclosed after their high
school open house that they had been sexually abused for several years by their cousin,
[defendant].”


                                                -12-
             Q. In this particular photograph, did it help you to understand ultimately
       how someone could be sitting on the couch and having another person in the
       room?

              A. Yes.

              Q. How so?

                A. The positioning of the furniture, of how, you know, the one chair is a
       little bit more forward. And then also the description of sitting close together.
       And when you see, you know, how couch cushions are divided. And then also the
       opportunity for the reflection. [The mother] had been reporting seeing a
       reflection. And as an investigator I didn’t really understand that at that point.

              Q. So looking at People’s 52, taking that photograph, did that help you
       understand what she meant better?

               A. I think what I see there is that reflections are possible. Again, at that
       point, I didn’t know where the windows were in the home, or if reflections were
       possible in the home. So I still wasn’t certain did she see the reflection in that TV
       or a different one, or a piece of glass or a different one. But I see that reflection is
       possible.

               Q. Thank you. So we just kind of did that as an exercise. Is that a good, a
       fair depiction of how you kind of run an investigation? You take the facts as you
       understand them, and then look for corroboration evidence, one way or the other?

              A. Correct.

       During Harrison’s cross-examination, defense counsel questioned Harrison as follows:

              Q. Now, you have talked about there is instances where there is a delayed
       disclosure. Does delayed disclosure equate in any way with being a credible
       disclosure?

              A. I can’t—

              Q. I guess the question I’m asking, because the disclosure is delayed, does
       that somehow make it, at least in your experience, more credible?

               A. I see cases—my job is to investigate and report the facts. But I see
       cases in both delayed and immediate disclosure. In both delayed and immediate
       disclosure, sometimes I screen them out. And in both delayed and immediate
       disclosure, sometimes I’ve turned them over to the Prosecutor’s office.

        Defense counsel also attempted to elicit inconsistencies between DG’s and KG’s forensic
interview statements and their trial testimony by asking Harrison. For example, defense counsel
questioned Harrison as follows:

                                                -13-
               Q. How was it that K[G] made it clear to you how the pencil was used in
       this case?[6]

               A. When I said a clear statement, my alternate hypotheses [sic] was that
       this could have been a misunderstanding or a non-sexual touch. There was no
       doubt in my mind that she was describing sexual touch at the end of the interview.
       So that was what I meant by that.

                       And then every detail, there is not an expectation to make every
       detail absolutely clear. That’s not always possible.

              Q. But you would acknowledge that any—that there was no clarity with
       regard to D[G]’s statement to you—I’m sorry—K[G]’s statement to you about
       how, where, what, why, a pencil was used on her, was there?

              A. I disagree with what you’re saying. I mean, we had a discussion. I
       asked questions about objects. She stated objects to me. I do think that that’s
       clear.

       On redirect, the prosecutor elicited further testimony, without objection from defense
counsel that allowed Harrison to explain how her investigation corroborated DG’s allegations:

               Q. [Defense counsel] asked you about who you interviewed concerning
       the hot tub incident that we’re talking about. And I believe your answer was,
       obviously, D[G], initially. And then you interviewed the Grandma and Grandpa
       [], Johnny [], Senior and D[G] correct?

               A. Yes.

                 Q. What information did they provide that either—that helped you out
       with understanding D[G] and what she told you that had happened? And let me
       just, if I can, just jump to as the swimsuits.

               A. Yes.

               Q. So what did D[G] tell you about swimsuits in the hot tub?

              A. She said that most of the time there isn’t swimsuits in the hot tub. I
       could be wrong on most of the time. She said that the kids did not wear swimsuits




6
  During KG’s cross-examination, defense counsel had asked KG about portions of the
description of the Allen wrench incident that KG gave during her forensic interview in which
KG had stated that defendant was “look[ing] for something else, like pencils or just other things”
but had not described defendant actually touching her with a pencil.


                                              -14-
       in the hot tub. So I wanted to speak to an adult about that or another source to see
       if that is what the other source was telling me.

              Q. What did you find out?

              A. That they agreed with that statement.

              Q. What about shirts, where to get shirts?

               A. I asked the same question of Grandma [], where are shirts kept. He
       [sic] showed me the closet which, when I was there, was consistent with what
       information had been provided to me by D[G].[7]

              Q. What about the fact that there had been a waterbed? What, if anything,
       about the waterbed in that room?

              A. In Grandma and Grandpa G[]’s bedroom?

              Q. Yep.

              A. Yes. So when I was there, the furniture had changed. But she was
       able to describe to me what furniture had been like prior, you know, 13 years
       prior.

              Q. And that was consistent, correct?

              A. Yes.

              Q. Why is that important in your investigation on sexual abuse cases?

               A. For more than one reason. Again, it’s to understand the scene to help
       create a picture of was this possible. It also is to test alternate hypotheses to see—
       look for consistency in witness statements.

                Q. All right. The thing about the pond incident, near the dock, do you
       recall that incident with D[G]?

              A. Yes.

              Q. What did you do—these are ways to corroborate statements, fair to
       say?

              A. Yes.


7
  It appears that the second reference to DG was intended to refer to the alleged victim in this
case. DG and her grandmother have the same name.


                                               -15-
               Q. What did you do to corroborate the statement about the pond incident,
       if anything?

              A. It was mainly looking to see where the pond was, which house was the
       pond at, how close was the pond or far to the house. Where are seating areas.
       What does the dock look like. Basically observing, based on she had talked about
       the proximities of the dock, the heighth [sic] of the dock. I wanted to go there and
       document what the dock looked like.

              Q. Okay. What about people’s observations about the two of them in the
       pond at other times?

               A. Right. There was more than one witness statement about hollering out
       to them or seeing them at a distance. And I wanted to be able to put myself in that
       position of where those people would be, and then how far is that to holler out, or
       how far is that to what could they see, what would be their vantage point.

        Harrison specifically explained how, in her view, a photograph of the scene where
defendant allegedly grabbed DG’s chest demonstrated that the reflection reported by DG’s
mother was “possible.” In essence, Harrison testified regarding her interpretation of the
evidence and advocated that a particular conclusion be drawn by the jury—namely, that the story
told by DG and her mother made sense and was believable—even though the jury was just as
capable of evaluating whether the photograph supported the veracity of DG’s and her mother’s
respective testimony. By asking the jury to allow her own reasoning to replace that of the jury’s
in this regard, Harrison was improperly vouching for the credibility of DG and her mother.
Musser, 494 Mich at 348-349; Evans, 12 Mich at 34; Walker, 40 Mich App at 144-145.

        Furthermore, Harrison testified that the initial phase of a forensic interview includes
obtaining a “promise to tell the truth” from the interview and that the interview was “a fact-
gathering mission.” She explained that she tested the alternate hypotheses (1) that the allegations
involved a misunderstanding regarding whether there was a sexual touch and (2) that the
allegations involved a lie. Harrison stated that she concluded that there was no misunderstanding
because the victims “provided clear statements,” and she also indicated that she was partially
able to eliminate the notion that lying was involved. Harrison also heavily emphasized that the
forensic interview process as “unbiased,” “research-based,” “scientific,” and “neutral.” This
testimony served as clear vouching for the veracity of the victims’ statements through painting
the forensic interview process as a rigorous truth-testing tool on which the jury could rely to
conclude that the victims’ statements were believable. Harrison also invited the jury to rely on
the quality of her investigation by testifying about how she corroborated the girls’ statements
through comparing them with the statements of other individuals she interviewed and noting the
consistencies; Harrison expressly explained that her job was to “thoroughly investigate” cases to
determine whether referral to the prosecutor’s office was warranted. By so testifying, Harrison
presented the forensic interview process and her own investigation as substitutes for the
necessity of the jury to independently make its own credibility determinations, and she therefore
improperly vouched for the credibility of both victims. Musser, 494 Mich at 348-349; Evans, 12
Mich at 34; Walker, 40 Mich App at 144-145. In short, under the guise of ill-described
“scientific methods” she held herself out to the jury as a human lie-detector.

                                               -16-
        Moreover, although the prosecution argues that these statements were not hearsay
because they were offered to show their effect on Harrison’s investigation rather than for the
truth of the matter asserted, the statements were still inadmissible because they were effectively
part of Harrison’s improper vouching testimony and were accordingly not offered for any
relevant purpose. As our Supreme Court has explained, “even if an out-of-court statement is not
offered for the truth of the matter asserted, the statement is not automatically admissible because
the ‘touchstone’ of admissibility is ‘relevance.’ ” Musser, 494 Mich at 354 (citations omitted).

         To the extent that defense counsel’s cross-examination of Harrison and defense counsel’s
trial strategy of generally attempting to undermine the credibility of prosecution witnesses could
be understood to have made the steps of Harrison’s investigation somehow relevant (which is
what the prosecution appears to argue on appeal) the prosecutor at trial should have only elicited
testimony from Harrison that would show that she followed proper investigative procedures
without eliciting testimony that took the additional step of explaining how her investigative
findings demonstrated that the stories of other witnesses were believable. It is that additional
step of essentially connecting the dots for the jury that constituted the improper vouching by
Harrison.

        Returning to defendant’s ineffective assistance of counsel claim, defense counsel in this
case failed to object to Harrison’s improper vouching testimony set forth above. “[C]redibility
contests are not uncommon in criminal sexual conduct cases,” People v Anderson, 446 Mich
392, 407 n 37; 521 NW2d 538 (1994), cert den sub nom Michigan v Anderson, 513 US 1183;
115 S Ct 1175; 130 L Ed 2d 1128 (1995), and “the principle issue in cases involving criminal
sexual conduct is the credibility of the complainant,” People v Beckley, 434 Mich 691, 717 n 39;
456 NW2d 391 (1990) (opinion by BRICKLEY, J.). And while the instant case did not involve a
credibility “contest” in the strict sense of the phrase because defendant did not testify, the
credibility of the alleged victims and other prosecution witnesses was clearly of central
importance in this case. Yet, despite the importance of witnesses’ credibility and defense
counsel’s apparent strategy of trying to undermine the victim’s credibility, defense counsel still
did not challenge the clearly inadmissible vouching testimony by Harrison set forth above. Our
Supreme Court has long recognized “the undue weight that jurors may be inclined to place on
police officers’ statements.” Musser, 494 Mich at 363. In this case, there was no “sound”
strategic reason for defense counsel’s failure to object to Harrison’s pervasive vouching, and
defense counsel’s performance thus fell below an objective standard of reasonableness.
Douglas, 496 Mich at 585-586.8



8
  Defense counsel did object, on the ground of improper vouching, to the prosecutor’s question
asking Harrison whether it is typical for a victim to “disclose everything that happened to them
in that initial interview.” In making his objection, defense counsel stated that this question was
asking Harrison to “give an opinion as to credibility.” The prosecutor argued that the question
was actually “based on her training and experience doing interviews,” and the trial court stated
that “[i]n essence, he is asking as she did this, what did you do.” Defense counsel responded to
the trial court’s statement by saying, “I don’t have a problem with that. If he can restrict that, I
won’t have an objection.” The trial court then overruled defense counsel’s objection. However,


                                               -17-
                                  IV. TESTIMONY OF GUERTIN

         Dr. Guertin, a specialist in general pediatrics, pediatric critical care, and child abuse,
testified as an expert in “child abuse.”9 Guertin conducted examinations of both victims. In
response to the prosecutor’s question about why it was still important to examine an individual
when the alleged abuse did not occur recently, Guertin responded that “[i]t’s what it always is,
which is diagnosis and treatment.” He explained that sexual assault or physical abuse can be
diagnosed “years afterwards”; that it is important “to make sure that the perpetrator still doesn’t
have access to the child, even if she was a teenager”; that it is important to make sure that
counseling is being provided,10 and that there were still potential sexually transmitted infection
issues.

        Guertin examined DG first. He testified that he took a medical history from her, during
which she told him “that starting at an early age, sometime around five years or so, up through
about age 15 or 16, that she had been raped and molested by a cousin,” who she identified as
defendant. According to Guertin, DG told him that the incidents occurred at her grandmother’s
home, that her mother had witnessed one incident of inappropriate touching, and that the other
incidents were not seen by anyone else. Guertin’s testimony also included recounting more
specific allegations made by DG during the course of the medical history, including that
defendant had done “a lot of rough fingering [and] touching” inside of DG’s “private area,” that
defendant had put “the plastic part of a wrench that had been gnawed on or chewed on by a dog”
inside her private area, that defendant had engaged in “genital to genital contact” with DG when
she was five years old, that there was an incident in a pond at her grandparents’ home where DG
“had to manipulate [defendant’s] penis” under the water, that defendant used pornography with
DG “while he was molesting her,” and that defendant told DG that her family would be ruined or
destroyed if she told anybody. Guertin also testified that he performed a physical examination of
DG and that she had “two deep notches in her hymen.” DG also informed Guertin that she was
sexually active at the time of the examination.

        According to Guertin, the potential for injury to the hymen is “higher in the pre-pubertal
period” because the hymen is fragile and does not stretch at that stage of a child’s development,
and “the opening of the hymen in a pre-pubertal child, a child up through about age 10 to 12,” is
approximately 10.5 millimeters, which is smaller than the size of the average finger, erect adult
penis, or the presumed size of a wrench handle. However, Guertin further explained that a
sexually active individual “can certainly have evidence of sexual trauma from normal or
volitional sexual activity[] [a]nd depending on how active they are, the incidence of that can be
pretty high.”


defense counsel permitted the other impermissible vouching testimony described above to come
in without any objection.
9
  The prosecutor moved to qualify Guertin as an expert “in the field of sexual abuse against
children,” and defense counsel indicated that he had no objection.” The trial court then stated
that it was qualifying Guertin as an expert “in child abuse.”
10
     Notably, Guertin clarified that “we don’t provide the psychological counselling.”


                                                 -18-
      Guertin testified that in his opinion, DG:

      gave a very clear history of being sexually molested over a period of years,
      beginning at a very early age, age 5, by a person named [defendant]. It included
      fondling, inserting the handle of a tool into her vagina, which was both painful
      and caused bleeding. She also integrated [sic] that there was at least some degree
      of penetration with his penis. On one occasion she was very young, age five.
      And she indicated that she was compelled to manipulate his penis as well. She
      was warned that discovery of this would ruin her family. And, also, he used
      pornography at least during some of these acts.

              The physical examination showed two deep notches. One almost a
      transection, which clearly could support—which clearly supports an allegation of
      sexual abuse. As well, she was sexually active. And that you cannot necessarily
      separate out the findings that you see from abuse versus that volitional sexual
      activity. That’s it.

       Regarding KG’s medical history, Guertin testified as follows in response to the
prosecutor’s questions:

             Q. What was the history of K[G]?

             A. Oh. She knew that she had come to the office to get a pelvic exam,
      because she had been molested. Actually she said a pelvic exam for being
      molested as a child. So I asked her: Well, were you or not. And her answer was:
      Yes. I asked if it happened only once or more than once. She said more than one
      occasion. I asked her how old was it when it started. She said five or six years
      old. I asked her when the last sexual conduct was. She said probably 13 years
      old. I asked if anybody saw what happened to her. She said no. I asked her
      where these things took place. She actually listed a number of locations where
      she had been molested. She said her own home, in her bedroom, in her
      grandparents’ house, the upper floor of her great-grandmother’s house, and the
      swimming pool at [defendant’s] parents’ home.

             Q. And what else did she tell you?

              A. She indicated that nothing happened that involved his mouth. She
      indicated that the person who did this was [defendant], who was her cousin. She
      indicated that he did molest her with his hands, his fingers.

             Q. Now, did she tell you anything else?

              A. She said that he forcibly put a finger inside of her, and then it hurt her.
      But she didn’t describe or remember bleeding related to those episodes. I asked if
      her [sic] if he did anything with his penis. Her answer was no. I asked her if he
      used anything else to touch her improperly. Her answer was the handle of a screw
      driver, an Allen wrench. And by that she meant the same thing. And with a
      pencil. I asked her if that hurt her. She said yes. I asked her if there was any

                                              -19-
       bleeding with that, and she said yes. So she indicated that there was an event
       using a tool that had caused her both pain and bleeding. She didn’t indicate that
       anything involved her anus or her own mouth or her own hands. And she didn’t
       indicate that pornography was used with her.

              I also asked her if he said anything to her.

              Q. Okay.

              A. And her answer was: He would tell me, this is normal. And you
       shouldn’t be telling people because it’s private.

              Q. And K[G] was also sexually active, correct?

              A. Yes.

Additionally, Guertin testified that his physical examination revealed that KG had evidence of
injury to her hymen in the form of “a deep notch.”

       Guertin testified that in his opinion, KG:

       also gave a strong history of being sexually molested by [defendant]. This
       included digital penetration and instruments being used to penetrate her vaginal
       area, which caused pain and bleeding. This included the handle of a screwdriver.
       [Defendant] would tell her that the activity was normal, but that it needed to be
       kept private. The physical examination showed deep notch at the 5:00 position of
       the hymen, which confirms sexual trauma. Again, just as with her sister, and a
       sexually active person, you can’t necessarily say it was from one or the other.

      The prosecutor questioned Guertin on direct examination to clarify his opinion regarding
whether the alleged victims’ injuries were caused by sexual abuse or consensual sexual activity:

              Q. Now, Doctor Guertin, you’ve testified and your assessment clearly
       shows it’s difficult to pinpoint and say this is either from sexual abuse or this is
       from consensual adult sexual contact with these types of injuries, correct?

              A. Correct.

              Q. Is there—is one more likely than the other, can you even say that?

                A. What you can say is you’re more likely to suffer an injury if there is
       penetration across the plane of the hymen during the pre-pubertal period. But you
       still can get an injury. And especially if there is really frequent intercourse from
       post-pubertal sex. But just in terms of—in terms of the vulnerability of injury, if
       the sexual contact in the pre-pubertal period includes penetration across the plane
       of the hymen, then there is a higher probability from that in the pre-pubertal
       period to cause injury than in the post-period.


                                               -20-
                         Remember, the post-pubertal period, the opening of the girl’s
          hymen is typically 12 to 25 millimeters. And they have a distensible hymen. So
          penetration simply is better tolerated there, and less likely to cause injury.

                  Q. All right. Thank you. So, finally, looking back on D[G]’s medical
          history, and her examination, are there any inconsistencies in her physical exam
          with the history that she gave you?

                 A. No. No. Both kids actually have evidence of sexual trauma. Both
          kids indicated not only painful, but bleeding sexual encounters that were
          molestation, episodes of molestation. And both kids also described being
          sexually active. So what we found is consistent with either one.

                 Q. With both children, correct?

                 A. Sure.

During cross-examination, Guertin further clarified this point, stating that

          you can clearly get these injuries with a painful sexual molestation encounter that
          entailed bleeding, especially if it was in the pre-pubertal period. You can also get
          these findings from consensual sex, especially recurrent consensual sex.

Guertin testified that his conclusion that DG and KG had given “clear” and “strong” histories,
respectively, of sexual abuse were based only on what they reported and the level of detail; he
could not “tell you if they were telling [him] the truth.”

          On redirect, the prosecutor questioned Guertin as follows:

                  Q. Now. Is it—when you have a history of sexual abuse in this way, you
          indicated a clear history and a strong history, I think, for each girl, then you find
          those particular injuries. And in K[G]’s case she specifically says there is no
          accidental injury. What, if any, conclusion do you draw from that?

                 A. The conclusion that you can—

                 Q. Or diagnosis, I should say.

                 A. There are a number of conclusions you can draw. And they are in the
          assessment.[11] But the first one is a child gives a history of recurrent forms of
          sexual molestation. She is describing penetrated molestation on more than one
          occasion. She is not only is describing discomfort, but describes bleeding
          associated with at least one of these episodes.



11
     Guertin explained that the “[a]ssessment mainly just means my opinion.”


                                                  -21-
               When you examine her, you find that she has two tears in her hymen.
       Tears in the hymen are completely consistent with what she has said about
       episodes of penetrative abuse. By the way, they are also consistent with a history
       of recurrent volitional sexual intercourse.

               The second child gives you a history of penetrative events, gives you a
       history of bleeding as well as pain. She has a single tear on her hymen. That tear
       in her hymen is completely consistent with what she has said.

               She also admits to volitional sexual intercourse. So it could be from that,
       too.

               But in terms of making a diagnosis of sexual abuse, if you have a clear or
       detailed history, I cannot tell you that it is the truth. I’m telling you that it is clear
       or strong or detailed. And you have physical findings that would be consistent
       with what is in that history. I believe it is valid to conclude that the child was
       sexually molested. In this case both of them.

              Q. Again, that’s based on your—it’s consistent—with the history is
       consistent with their findings?

               A. Right. The diagnostic process is history. Sometimes that’s all you
       have—

               Q. Sure.

               A. —physical exam and any laboratory studies that you might do. And in
       this particular case the diagnostic process would lead you to a conclusion, that led
       me to a conclusion, frankly, that they have been molested.

              Q. All right. And you weren’t there, you can’t know that for sure.
       You’re just basing this on a procedure, correct?

               A. Right. I can’t know that for sure. (emphasis added).

On recross-examination, defense counsel questioned Guertin further on this point as follows:

             Q. Part of the reason you don’t know it for sure is because you don’t
       know whether what they told you was true?

               A. You can never know if it’s the absolute truth, it’s only partly true. So,
       yes, that’s the reason why you don’t absolutely know.

               Q. So part of your conclusion is based on an assumption that what they’re
       telling you is accurate, then that would be sexual molestation?

              A. Right. When we talk to a patient we ask for history. We try to find out
       about symptoms and signs. We take them at their word. (Emphasis added).

                                                 -22-
        Finally, Guertin also testified about memory-related issues for victims of child sexual
abuse. Guertin testified during his direct examination that if something happened to a person
repeatedly over a prolonged period of time, it was difficult to remember the specifics about a
particular incident. Subsequently, in response to a question from the jury regarding whether it
was possible for memories to “blur together or get mixed up” when molestation happens over
time, Guertin testified that:

       the actual experiences are remembered, but not the details of each individual
       event. I’m going to give you an example. Let’s say on one event I get fondled in
       the pond, or I have to give somebody a hand job in the pond. Other things might
       have happened that day, but I remember that. Okay? Let’s say six times
       somebody put a finger up my vagina. I can’t remember on what day they did that
       and something else, necessarily. But I clearly remember having a finger put up
       my vagina. I don’t know necessarily that it happened 10 times or five. But I
       clearly know that I got a finger put up my vagina over this period of time.

              So it’s the same with what kids remember if many things have happened
       many times is broadly what happened to them. If you were beaten as a child, you
       can clearly remember being beaten and remember how horrible it was. But you
       can’t necessarily remember which day or which beating was that horrible or
       which beating is this is [sic], what ended up happening to you or that you
       remember being beaten. It’s the same way with this.

              So over time, let’s say many things happened to a person many times.
       They remember what those physical things are that happened to them. They may
       not be able to remember how many of those things happened on any given day,
       how many of those things were just isolated events.

              That’s the answer to that question.

              The Court: And Part 2 of [juror] number 8’s question is: Given your
       response, is this blurring likely or common among victims?

              [Guertin]: It’s common among victims who have repeatedly had things
       done to them, and/or more than one thing done to them. They remember what the
       physical acts are that occurred that happened to them. Some they may not tell you
       about because they are ashamed of them. So kids commonly are ashamed to tell
       you about being sodomized, and they think nothing about telling you about
       vaginal penetration. Just all depends on the kid.

             Even though there is blurring about each date, each of the event’s cycle, if
       you will, there is not blurring overall about the things that happened to them.
       Now what they choose to tell you or not, that’s up to the kid.

       On recross-examination, defense counsel questioned Guertin as follows:

              Q. Just one more question with regard to a jury question. Other than the
       information that D[G] supplied you with regard to a lot of rough fingering, the

                                              -23-
       other acts of being—claims of being penetrated with a penis, having been
       subjected to having to perform a hand job, and the incident where a tool was used,
       those were only one incident per each of those categories that she described?

               A. Right. She remembers those incidents.

               Q. There is no claim that there are repeated instances of those that would
       blur the details?

              A. There is the claim by the child that forms of molestation began at age
       five or six, and ended at age 15 or 16. I think that provides a significant
       opportunity to blur the details. But it may not.

               Q. Right. But with regard to the specific acts that I described, the
       penetration with a penis, the allegation about a hand job, the allegation about a
       tool, there was only one incident that was claimed by that child of each of those?

             A. Right. What she is describing, there are events that she clearly
       remembers. (Emphasis added).

Defense counsel did not move to strike any of these answers given by Guertin, despite the fact
that neither was responsive to defense counsel’s questions.

        As an initial matter in analyzing defense counsel’s performance with respect to Guertin’s
testimony, his testimony regarding the alleged victims’ statements was inadmissible hearsay.
“Hearsay evidence is not admissible at trial unless within an established exception.” People v
Meeboer, 439 Mich 310, 322; 484 NW2d 621 (1992), reh den sub nom People v Conn, 439 Mich
1242 (1992); see also MRE 802. Under the hearsay exception in MRE 803(4), “[s]tatements
made for the purpose of medical treatment are admissible . . . if they were reasonably necessary
for diagnosis and treatment and if the declarant had a self-interested motivation to be truthful in
order to receive proper medical care.” People v Mahone, 294 Mich App 208, 214-215; 816
NW2d 436 (2011), lv den 491 Mich 908 (2012). However, in Shaw, Judge Shapiro, writing for
the majority, concluded that MRE 803(4) is not applicable when the examination “did not occur
until seven years after the last alleged instance of abuse, thereby minimizing the likelihood that
the complainant required treatment”; the complainant did not seek out the examining doctor but
was instead referred by the police “in conjunction with the police investigation into the
allegations of abuse by defendant”; and the complainant had seen a different physician, who did
not testify at trial, for gynecological care during the seven year interval. 315 Mich App at 675.
A situation with such a long period of time between the alleged sexual assault and the
examination differs markedly from a situation where an examination is conducted within a
relatively short time after the alleged sexual assault occurred. See, e.g., People v Garland, 286
Mich App 1, 9; 777 NW2d 732 (2009) (concluding that the “victim’s statements to the nurse
were reasonably necessary for her treatment and diagnosis” where the victim went to the hospital
for medical care and was examined on the same day as the sexual assault).

         In this case, there was also a period of approximately five years or more between the last
alleged incident of sexual abuse and Guertin’s examinations of DG and KG. Moreover, Harrison
testified that she referred DG and KG to Guertin after their forensic interviews, and DG testified
                                               -24-
that she had previously seen gynecologists and had disclosed the sexual abuse to someone at
Planned Parenthood at some point before her examination with Guertin occurred. Although
Guertin testified that he examined DG and KG for purposes of medical treatment that does not
mean that the examinations were actually for medical treatment for purposes of MRE 803(4); an
expert witness cannot testify to a legal conclusion. People v Drossart, 99 Mich App 66, 75; 297
NW2d 863 (1980) (“[I]t is important that the expert witness not be permitted to testify about the
requirements of law which apply to the particular facts in the case or to phrase his opinion in
terms of a legal conclusion.”). Guertin’s examination was not reasonably necessary for medical
treatment but was instead aimed at furthering the investigation. Therefore, Guertin’s testimony
regarding the alleged victims’ statements was inadmissible hearsay because it did not fall within
the hearsay exception of MRE 803(4). Shaw, 315 Mich App at 675.

         Moreover, Guertin also impermissibly vouched for the credibility of DG and KG through
his testimony. In stating his expert opinion, Guertin testified that DG “gave a very clear history
of being sexually molested over a period of years, beginning at a very early age, age 5, by a
person named [defendant].” Guertin then immediately continued by recounting several of DG’s
specific allegations against defendant. Guertin also testified that in his expert opinion, KG “gave
a strong history of being sexually molested by [defendant]” and then immediately continued by
recounting specific allegations made by KG against defendant. Furthermore, although Guertin
acknowledged that he could not actually tell if DG and KG were telling the truth, he also testified
that his conclusion that DG and KG had given “clear” and “strong” histories, respectively, of
sexual abuse were based only on what they reported and the level of detail in their accounts.
Guertin further opined that when these histories were considered along with his findings of
physical injury that was equally consistent with penetrative abuse as well as consensual sexual
intercourse, he concluded that it was “valid” to conclude that DG and KG were “sexually
molested.” Guertin also explained memory-related issues and then affirmatively stated that the
incidents described by DG were what she remembered.

        By repeating the alleged victims’ statements in the context of stating his expert opinion,
Guertin went beyond merely recounting their medical history and instead imbued the allegations
with the authoritative weight of a final conclusion by an expert. Essentially, Guertin testified
that he found the alleged victims’ stories credible. When understood in this light, Guertin’s other
testimony that he could not be certain that DG and KG had told him the truth seems somewhat
disingenuous. As our Supreme Court has explained with respect to expert testimony in child
sexual abuse cases,

       Given the nature of the offense and the terrible consequences of a miscalculation-
       the consequences when an individual, on many occasions a family member, is
       falsely accused of one of society’s most heinous offenses, or, conversely, when
       one who commits such a crime would go unpunished and a possible reoccurrence
       of the act would go unprevented-appropriate safeguards are necessary. To a jury
       recognizing the awesome dilemma of whom to believe, an expert will often
       represent the only seemingly objective source, offering it a much sought-after
       hook on which to hang its hat. [Peterson, 450 Mich at 374 (emphasis in original;
       quotation marks and citation omitted).]



                                               -25-
        Furthermore, Guertin’s opinion that it was valid to conclude that DG and KG had been
sexually molested constituted impermissible vouching because that conclusion was not supported
by objective medical evidence. Our Supreme Court has stated that even in the sexual assault
context, it is “well-established that expert opinion testimony will not be excluded simply because
it concerns the ultimate issue.” People v Smith, 425 Mich 98, 101,106; 387 NW2d 814 (1986),
citing MRE 704.12 However, the examining physician’s opinion must be based on objective
evidence “within the realm of his medical capabilities or expertise,” or else it is merely an
improper opinion on the complainant’s veracity. Id. at 112-115 (holding that a doctor’s opinion
that a complainant was sexually assaulted should not have been admitted where it was based on
the complainant’s emotional state and self-reported history rather than on any “findings within
the realm of his medical capabilities or expertise as an obstetrician/gynecologist” because this
expert opinion had the effect of being an “assessment of the victim’s credibility”).

       In People v McGillen #2, 392 Mich 278, 284-285; 220 NW2d 689 (1974), our Supreme
Court held that a doctor’s opinion that penetration had occurred was improperly admitted where
“the prosecutrix admit[ed] that a second rape occurred subsequent to the charged offense, any
testimony the doctor may give is irrelevant and immaterial especially in view of the length of
time that intervened between the alleged act and the physical examination.” That case involved
defendant’s trial for the first alleged incident of sexual assault, but the doctor had only conducted
a physical examination of prosecutrix approximately two weeks after that incident; during that
two-week interval, the prosecutrix was sexually assaulted a second time. Id. at 281-282. In
reaching its holding, our Supreme Court reasoned as follows:

               By accepting as fact the prosecutrix’s factual history and then testifying
       that in his expert opinion the medical examination supported and was consistent
       with that history, he is lending his medical opinion to support a claim made by the
       prosecutrix that is beyond the realm of his medical capabilities and expertise. The
       doctor is not a qualified expert on the question of whether or not the prosecutrix
       was raped by the defendant on the alleged date. [Id. at 285.]

         In this case, Guertin testified that his physical examination revealed injuries to the
hymens of DG and KG that he opined were equally consistent with being caused by childhood
sexual abuse or consensual sexual activity. The medical histories of both DG and KG indicated
that each girl was sexually active at the time of the examinations and that each girl alleged
instances of childhood sexual abuse. To the extent that Guertin opined that the injuries could
have been caused by either the alleged abuse or consensual sexual activity that was part of DG’s
and KG’s medical histories, this opinion was supported by objective medical evidence in the
form of his physical findings and medical expertise. Guertin also adequately explained the
justification for his conclusion that sexual abuse during the pre-pubertal stage was a “more
likely” cause, based on his medical knowledge of female anatomy and development. However,
Guertin had no objective medical basis from which to conclude that the “valid” conclusion was



12
  MRE 704 provides: “Testimony in the form of an opinion or inference otherwise admissible is
not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”


                                                -26-
that DG and KG had been “sexually molested.” By choosing one cause over the other without an
objective medical reason, Guertin went beyond the scope of what the his medical expertise
actually allowed and ventured improperly into the realm of inadmissible lay opinion about the
credibility of the alleged victims allegations against defendant. Id. This was also improper
vouching. Musser, 494 Mich at 349; Peterson, 450 Mich at 352; Buckey, 424 Mich at 17.

        For the same reasons that defense counsel’s performance was deficient with respect to his
failure to challenge Harrison’s vouching testimony, defense counsel’s performance was also
below an objective standard of reasonableness with respect to his failure to challenge Guertin’s
vouching testimony. Douglas, 496 Mich at 585-586. Like police officers, expert witnesses are
prone to having their statements given a greater degree of weight by juries. Peterson, 450 Mich
at 374.

                                      V. CONCLUSIONS

        Turning next to the prejudice prong under Strickland, defendant must show that there is a
reasonable probability that but for counsel’s deficient performance, the outcome of the trial
would have been different. 466 US at 694. A reasonable probability is one that is “sufficient to
undermine confidence in the outcome,” and this standard does not require defendant to show that
the outcome was “more likely than not” altered. Id. at 693, 694. “The result of a proceeding can
be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have determined the outcome.” Id. at
694.

       The instant case admittedly presents a closer question of prejudice than Douglas or Shaw.
In both of those cases, there were no third-party witnesses to the alleged abuse and little or no
physical evidence. Douglas, 496 Mich at 567; Shaw, 315 Mich App at 677. In this case, there
were no eyewitnesses to any of the incidents involving penetration of DG or KG, but there was
testimony that defendant had been seen on multiple occasions grabbing and poking DG and KG.
Her mother also witnessed the incident where defendant grabbed DG’s chest on the couch.

        However, even in the context of CSC-II, which is based on “sexual contact,” the
prosecution must still prove that the intentional touching could “reasonably be construed as
being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual
manner for” revenge, inflicting humiliation, or out of anger. MCL 750.520a(q); MCL
750.520c(1). The jurors in this case clearly did not believe all of the allegations that were made:
they acquitted defendant of one charge and could reach a unanimous verdict on another charge.
Considering the heightened weight that juries tend to give police officers and expert witnesses,
Peterson, 450 Mich at 374; Musser, 494 Mich at 363, and the amount of vouching and hearsay
evidenced admitted without objection, it is reasonably likely that that the improper vouching by
Harrison and Guertin could have convinced the jury that at least some of the allegations were
credible and, with respect to the CSC-II conviction, that defendant touched DG for a sexual
purpose as opposed to some other purpose.

       Such a conclusion is not mere conjecture. See Strickland, 466 US at 693 (“It is not
enough for the defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.”). Both Harrison and Guertin were the very witnesses our Supreme Court

                                               -27-
alluded to in Peterson when they held: “To a jury recognizing the awesome dilemma of whom to
believe, an expert will often represent the only seemingly objective source, offering it a much
sought-after hook on which to hang its hat.” Peterson, 450 Mich at 374. While it is important
not to minimize the significance of improperly touching another person in a sexual manner, it is
also worth noting that the instant case also involved a substantial amount of “other-acts”
evidence related to incidents that defendant would have allegedly committed when he was a
minor as young as 12 years old. These other acts were put into evidence in order to convince the
jury to convict defendant of criminal offenses that he allegedly committed as an adult.
Presuming that there was no error in admitting all of this other-acts evidence,13 it would still be
reasonable for jurors to potentially ascribe a different amount of weight or different purposes to
the acts of a 12 year old then they might to the acts of an adult, unless there was evidence
suggesting that they should do otherwise. Accordingly, the wrongful admission of vouching
testimony given by a police detective and a medical expert, who opined that DG and KG had
been “sexually molested,” could have reasonably made a difference in how the jury perceived
the alleged victims’ claims and the intent of any acts they believed defendant committed. See
Peterson, 450 Mich at 374; Musser, 494 Mich at 363; see also Douglas, 496 Mich at 580 (noting
that “[w]hile credibility contests are not uncommon in criminal sexual conduct cases, the
wrongful admission of corroborating testimony on either side could tip the scales and result in
harmful error”) (quotation marks and citation omitted).

        Contrary to my brethren in the majority, I question their reliance on People v Dobek, 274
Mich App 58, 71; 732 NW2d 546 (2007), lv den 480 Mich 897 (2007), for the proposition that a
jury certainly understands that a detective testifying as a prosecution witness in a criminal trial
believes that an alleged victim is telling the truth, regardless of any impermissible vouching
testimony that may be introduced. In my opinion, this reliance is misplaced because Dobek
involved an unpreserved claim of prosecutorial misconduct premised on eliciting the vouching
testimony rather than a claim of ineffective assistance of counsel based on a failure to object to
the vouching testimony. Id. at 70-71. The Dobek Court concluded that “[a]ssuming plain error,
defendant has not established prejudice, actual innocence, or damage to the integrity of the
judicial proceedings.” Id. at 71. When a prosecutorial misconduct claim involves an evidentiary
issue, the focus is on “whether the prosecutor elicited the testimony in good faith.” Id. at 70-71.
In contrast, the focus in the ineffective assistance of counsel context is on “whether [defense]
counsel’s failure to object to the improper evidence was constitutionally deficient, and if so
whether that failure prejudiced the defendant.” People v Randolph, ___ Mich ___, ___; ___
NW2d ___ (2018). Clearly, these are two very different questions. The first involves examining


13
   See, e.g., In re Kerr, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 335000);
slip op at 2-4 (holding that MCL 768.27a, which permits the prosecution in a criminal case
involving a listed offense against a minor to introduce evidence that the defendant committed
another listed offense against a minor, also applies in juvenile-delinquency trials but is still
subject to the specific application of MRE 403 set forth in People v Watkins, 491 Mich 450; 818
NW2d 296 (2012)). “Listed offense” means “that term as defined in section 2 of the sex
offenders registration act . . . .” MCL 768.27a(2)(a).




                                               -28-
the prosecutor’s actions and the second involves looking at defense counsel’s actions; whether a
prosecutor acts in good faith while eliciting evidence does not answer the question whether a
defense attorney’s failure to object to such evidence is below an objective standard of
reasonableness. In Randolph, our Supreme Court explained this point in the context of
distinguishing between the analysis applicable to unpreserved claims that the trial court erred and
claims of ineffective assistance of counsel:

               As an initial matter, the specific error that is the focus of each standard is
       different. It is the trial court’s unobjected-to error that is the subject of plain-error
       review. By contrast, the “ultimate determination” of an ineffective-assistance
       claim “is not the propriety of the trial court’s actions with regard to an alleged
       error, but whether defendant has suffered a genuine deprivation of his right to
       effective assistance of counsel . . . .” There will no doubt be occasions when both
       standards are relevant; trial counsel’s deficient performance will often result in a
       trial court error, but the claims associated with each type of error have their own
       elements and require different analyses. In evaluating a trial court’s error the
       appellate court is making one determination, and in evaluating trial counsel’s
       deficient performance, the determination is different.

                The tests for each determination reflect their differences. The first two
       prongs of the plain-error standard require that an error exist and that it be obvious.
       Neither of these alone satisfies either Strickland prong. A trial court’s error does
       not tell us (1) whether counsel performed deficiently with respect to that trial
       court error or (2), if counsel’s performance was deficient, whether it prejudiced
       the defendant. The obviousness of the error, the second plain-error test element,
       is no different. While in some instances an obvious error may correlate with
       counsel’s ineffectiveness in responding to it and the prejudice resulting from that
       failure, in others instances it will not. [Id. at ___; slip op at 7-8 (citations omitted;
       ellipsis in original).]

Furthermore, with respect to the prejudice requirement under both the plain error standard and
the ineffective assistance of counsel standard, the Randolph Court stated that “a finding that a
defendant failed to satisfy the prejudice prong when complaining about an error by the court will
not necessarily mean that the defendant is unable to prevail on an ineffective-assistance claim
relating to the same underlying issue.” Id. at ___; slip op at 10. Accordingly, Dobek does not
compel the conclusion that defense counsel in the instant case was not ineffective with respect to
Harrison’s vouching testimony. A prosecutor could elicit improper testimony while acting in
good faith (and thus without having committed misconduct), but it still might be constitutionally
ineffective for defense counsel to have failed to object to that improper testimony.

        Rather than relying on Dobek, I find the decisions in Douglas and Shaw applicable. The
instant case involved a situation where the credibility of the alleged victims was of central
importance, and seemingly objective witnesses with the authoritative positions of police
detective and medical doctor testified in a manner that vouched for the believability of the
alleged victims’ stories. For the above reasons, there is a reasonable probability that if defense
counsel had objected to this vouching testimony and prevented it from being admitted, the
outcome of defendant’s trial would have been different and the jury would not have convicted

                                                 -29-
him as it did. The failure by trial counsel to object to the hearsay statements provided by
Harrison and Guertin allowed those statements to be considered by the jury. The failure of trial
counsel to allow them to present their testimony, again without objection, in a manner best
described as human lie detectors, undermined the credibility of the verdict and denied defendant
a fair trial. See Peterson, 450 Mich at 374; Douglas, 496 Mich at 586-588; Shaw, 315 Mich App
at 677-678. Accordingly, I would reverse the convictions of defendant and remand the matter to
the trial court for a new trial.



                                                           /s/ Stephen L. Borrello




                                             -30-
