Supreme Court decides on Kent County case, People v. Musser

The following is taken word for word from the Syllabus in People v. Musser, as indicated. For the complete Opinion, visit http://courts.

Michigan Supreme Court
Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh, Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been  prepared by the Reporter of Decisions for the convenience of the reader. Reporter of Decisions: Corbin R. Davis.

Docket No. 145237.  Argued March 6, 2013 (Calendar No. 5).  Decided July 12, 2013.
John M. Musser was convicted by a jury in the Kent Circuit Court of two counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a), and one count of assault and battery, MCL 750.81, for sexually touching an eleven-year-old girl in 2009 while the complainant and her family were at defendant’s house.  During defendant’s interview with the police, the detectives made statements regarding the complainant’s truthfulness, as well as that of child-victims in general.  In addition, one detective indicated during the interview that he had completed hundreds of forensic interviews.  The circuit court, James R. Redford, J., admitted the detectives’ recorded statements to defendant during the police interview over defense objection, reasoning that the statements gave context to defendant’s statements.  After defendant moved for a mistrial, the circuit court instructed the jury that the detectives’ statements were not evidence and were only to provide context for defendant’s statements.  The Court of Appeals, SAWYER, P.J., and MURPHY, C.J. and O’CONNELL, J., agreed with the circuit court’s reasoning and affirmed in an unpublished opinion per curiam, issued February 21, 2012 (Docket No. 301765).  The Supreme Court granted defendant’s application for leave to appeal.  493 Mich 860 (2012).  

In a unanimous opinion by Justice CAVANAGH, the Supreme Court held: 

Out-of-court statements made by police investigators during the interrogation of a defendant that vouch for the credibility of another, that are not offered for the truth of the matter asserted but to provide context for the defendant’s statements, are admissible if they are relevant for their proffered purpose in accordance with MRE 401; even if relevant, such statements may be excluded under MRE 403 if the probative value is substantially outweighed by the danger of unfair prejudice and a party may request, pursuant to MRE 105, that the scope of such testimony be properly limited and the jury instructed accordingly.   

1.  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 it is within the jury’s province to determine the truthfulness of witnesses.  Pursuant to MRE 401, the party seeking to introduce a police interrogator’s out-of-court statements through a recording or written transcript of the interview must explain how the statements are relevant to the proffered purpose of providing context for the defendant’s responses.  Even if the statements are relevant, they may be excluded under MRE 403 if the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence sought to be introduced; in child-sexual-abuse cases the danger  of prejudice is high because such cases often hinge on credibility assessments.  If such statements are admitted a party under MRE 105 may request an instruction restricting the evidence to its proper scope.   

2.  In this case, the circuit court abused its discretion by failing to redact the majority of the detectives’ out-of-court statements from the interrogation recording in which they commented on credibility; most of the statements had no probative value and, even if there was some probative value to the statements that  the trial court erroneously failed to redact, the prejudicial effect of the remaining statements outweighed any probative value because of the dangers inherent in child-sexual-abuse cass. Admission of the statements undermined the reliability of the verdict because the jury may have relied on the detectives’ repeated out-of-court statements regarding the complainant’s credibility, there was a lack of physical evidence and the comments created an aura of expertise for the one police investigator. The belated limiting instruction did not cure the error.    

Court of Appeals’ judgment reversed, defendant’s convictions vacated, and the case remanded to the
trial court for further proceedings.  


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