Statistical vouching in a CSC case; People v Thorpe; People v Peterson; People v Bonner (Unpub); Plain error review; Prejudice; 25-year mandatory minimum sentence; MCL 750.520b(2)(b); People v Benton

While the court held that a prosecution expert (R) impermissibly vouched for the victim’s credibility in this CSC case, and the error was obvious, it concluded defendant-Sattler-VanWagoner did not show outcome-determinative prejudice. And his challenge to his mandatory minimum sentence under MCL 750.520b(2)(b) failed pursuant to Benton. Thus, the court affirmed his CSC I conviction and sentence. It found that R’s “statements that false reports are ‘statistically very rare,’ though lacking a numeric value, was essentially the statistical vouching described in Thorpe[.]” The court applied plain error review to defendant’s unpreserved claim. As to the first two prongs, it determined “that an error occurred and its was obvious. Even without attaching a number or percentage, [R’s] testimony about the statistical likelihood of a child complainant lying about sexual assault (i.e., that it was ‘statistically very rare’) clearly violated Thorpe’s prohibition on such testimony.” The court noted that the “Supreme Court’s analysis in Thorpe was not limited to specific numerical values; it applied more broadly to the odds or likelihood that someone is telling the truth.” The court reached the same conclusion in an unpublished case, Bonner, which involved the same expert as Thorpe. The court held in Bonner that there “‘is no meaningful difference between a falsehood estimate of “two to four percent,” [the expert]’s testimony in Thorpe, and his unsolicited “extremely rare” response here.’” Finding its reasoning in Bonner sound, the court concluded R impermissibly vouched for the victim’s “credibility by testifying that false reports were ‘statistically very rare in cases like this’ for two reasons. First, although [R] did not provide a specific percentage value, her comment on the statistical rarity of a false report was sufficiently similar to bring her testimony within the scope of Thorpe’s prohibitions. This is exactly what” the court found in Bonner, and its reasoning was sound. “Second, the addition of the phrase ‘in cases like this’ comes dangerously close to commenting directly on [the victim’s] truthfulness or veracity in this case. That phrase directly linked the statistical likelihood of a false report to the testimony in this case.” But defendant was not entitled to reversal. The issue related “to a single comment in [R’s] testimony.” The court concluded the “isolated nature of the statement and substantial other evidence of Sattler-VanWagoner’s guilt indicates that this error did not affect the outcome.”