Ineffective assistance of counsel; Failure to consult or call an expert witness; Potential significance of expert testimony in child-sexual-abuse cases; People v Peterson; Hearing under People v Ginther; The trial court’s credibility assessments; Vouching; Prejudice; People v Ackley

Holding that respondent-father was denied the effective assistance of counsel, the court vacated the trial court’s ruling admitting his child’s (BC) tender-years statements, the order of adjudication, and the order of termination. It remanded “for new proceedings, including a new tender-years hearing should” the DHHS again seek to admit BC’s out-of-court statements. Respondent contended an expert in forensic interviewing, child memory, and suggestibility should have been obtained. At the Ginther hearing, he offered the expert report and testimony of a clinical psychologist (Dr. S) as well as testimony from an attorney (K) “who specializes in child-abuse and child-sexual-assault cases[.]” The court concluded that “the trial court erred in a key respect when it determined after the Ginther hearing that the views of” S and K did not have sufficient credibility or weight. Both “reviewed only the materials that would have been available to them had they been engaged just prior to the adjudication trial.” In addition, the court found the record showed an expert who testified at the trial, Dr. H, “impermissibly vouched for” BC’s credibility, and the entire case rested “the credibility and reliability of BC’s disclosures.” The court further noted that “trial counsel stipulated to the admission of the report in its entirety and offered no specific objection with respect to [H’s] opining on” BC’s credibility. While trial counsel testified at the Ginther hearing that it was her strategy to try “to show that BC’s disclosures were not credible and were” the product of coaching by his mother, “counsel did not investigate—or even consider investigating—an expert who could have provided valuable information on child memory, suggestibility, source misattribution, and forensic-interview protocols, all of which would have been materially useful to supporting the defense’s theory and assisting a fact-finder’s assessment of BC’s disclosures.” The court found it particularly concerning that “trial counsel testified that she was not aware of such experts being used in child abuse-and-neglect cases.” The court held that “particularly given BC’s young age—only four and five years old—when he began making disclosures and undergoing forensic interviews, [S’s] expertise on child memory and suggestibility establishes a reasonable probability of a different outcome had counsel exercised reasonable professional judgment in investigating and presenting expert testimony to support the defense’s theory of the case.”