STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 29, 2017
Plaintiff-Appellee,
v No. 328157
Kalamazoo Circuit Court
MICHAEL DWAYNE CARVER, LC No. 2014-000448-FC
Defendant-Appellant.
Before: GADOLA, P.J., TALBOT, C.J., and GLEICHER, J.
PER CURIAM.
Defendant, Michael Dwayne Carver, appeals as of right his jury-trial conviction of first-
degree criminal sexual conduct, MCL 750.520b(1)(a) and (2)(b). The trial court imposed a
sentence of 25 to 50 years in prison for the conviction. Defendant filed an appeal as of right in
this Court. While his case was pending on appeal, defendant filed a motion to remand, which
this Court granted.1 On remand, the trial court granted defendant’s motion for a new trial on the
basis that his trial counsel provided ineffective assistance. On appeal, the prosecution argues that
the trial court abused its discretion when it granted defendant’s motion. Defendant also argues
on appeal that he is entitled to a new trial on additional grounds not addressed by the trial court.
For the reasons provided in this opinion, we affirm the trial court’s order, vacate defendant’s
conviction and sentence, and remand the case for a new trial.
I. BASIC FACTS
At trial, the victim’s mother testified that she was in the process of bathing the then five-
year-old victim when she noticed a small speck of blood on the tissue she used to wipe the
victim. The victim’s mother then questioned the victim about whether someone had touched her
inappropriately. Testimony established that the victim initially told her mother that her three-
year-old brother touched her, but, after her mother expressed disbelief, the victim identified
defendant as the person who inappropriately touched her. Testimony established that defendant
was the uncle of the victim’s mother and that he lived in the basement of the victim’s home at
1
People v Carver, unpublished order of the Court of Appeals, entered April 25, 2016 (Docket
No. 328157).
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the time in question. The victim testified that she went down to defendant’s bedroom during the
night, and he put his finger inside her and wiggled it around. Defendant testified and denied that
he touched the victim inappropriately.
At trial, defendant’s defense counsel, Becket Jones, highlighted the inconsistencies
between the statements that the victim gave to various persons. In order to place some of these
inconsistencies before the jury, Jones called the social worker who performed the victim’s
forensic examination, Ruth Westfall. Westfall testified about the victim’s statements and agreed
that the protocols for forensic interviews were designed to limit false positives. She testified that
false positives could occur, but that they are “very rare.” Defense counsel also called Detective
Jennifer Higby, the lead detective in the case, who watched Westfall interview the victim via
closed-circuit television and testified regarding the version of events the victim relayed to
Westfall during the interview. Higby told the jury that “[d]uring my investigation and according
to my training, I was comfortable that a sexual assault had taken place.”
In closing, Jones argued that the victim likely felt cajoled into naming someone when she
was confronted by her mother. Given the inconsistencies and the possibility that the victim only
named someone to satisfy her mother, defense counsel asked the jury to find that the prosecution
had not proved its case beyond a reasonable doubt. The jury, however, believed the victim’s
testimony, disbelieved defendant’s denial, and found him guilty.
On appeal in this Court, defendant moved to remand so the trial court could hold an
evidentiary hearing on whether Jones provided ineffective assistance. Defendant maintained that
Jones should have consulted with and called an expert on child suggestibility, relying on an
affidavit by an expert in forensic psychology, Dr. Daniel Swerdlow-Freed. This Court
determined that defendant established grounds to warrant an evidentiary hearing on this limited
issue and granted the motion. See People v Carver, unpublished order of the Court of Appeals,
entered April 25, 2016 (Docket No. 328157).2
The trial court held the evidentiary hearing in July 2016. At the hearing, Swerdlow-Freed
testified that child suggestibility refers to the phenomenon in which a statement is made to a
child that is not consistent with something that the child has already reported, but the child
accepts the change suggested by the statement. Swerdlow-Freed explained that young
children—preschool-aged children—are the “most suggestible.” As children mature into latency
and adolescence, he explained, their propensity “for suggestibility or their vulnerability for
suggestibility gradually diminishes and becomes more . . . what we see in adults.” Swerdlow-
Freed testified that age was the main factor, but other factors include whether the child was
interviewed by someone with a bias, whether the child was questioned improperly, or whether
the child felt pressured, coerced, or threatened to say something.
2
Defendant also filed a motion to remand on his own behalf to explore numerous other instances
of alleged ineffective assistance. However, this Court denied his motion for failure to persuade
that further factual development of the record was necessary. See People v Carver, unpublished
order of the Court of Appeals, entered July 8, 2016 (Docket No. 328157).
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Swerdlow-Freed also described the concept of source monitoring, which he stated deals
with whether a person can accurately distinguish between information that he or she knows
because he or she experienced it and information that he or she knows because he or she heard it.
According to Swerdlow-Freed, by the ages of 8 to 10, children have well-developed source
monitoring abilities. But, he explained, children in the 3-to-5 year range are still developing the
ability. Swerdlow-Freed testified that very young children have difficulty distinguishing
between things that they have experienced and things that they have merely heard about. “So,
they can just incorporate things that they’ve heard about and come to believe that they’ve
experience[d] it.” He explained that a false memory is a memory of something that did not occur
or that occurred in a way other than described. Children with false memories will often come to
believe them to be true. Swerdlow-Freed cited as an example a study involving children who
observed an event and described it immediately afterward. Sometime later they were read a
story about the event that included false details. When asked to describe the event again,
approximately 43% of the children incorporated the false details into their new report.
Swerdlow-Freed stated that a child who has incorporated a false memory will often
provide striking details for the memory, a phenomenon referred to as contextual imbedding. He
cited a study in which children were falsely led to believe that they had had their finger caught in
a mousetrap. A number of children ended up reporting that they had in fact had their fingers
caught in mousetraps. One child even gave an elaborate account of how his finger came to be
caught in the trap. Swerdlow-Freed explained, “[I]f there’s a reason to believe or evidence that
what [the child is] reporting may include misinformation, and it may be based on a false
memory, [the child’s] report may be very consistent, but very inaccurate.” For that reason,
Swerdlow-Freed opined, one cannot say that a report is more reliable because the child provided
details. He explained that in a study of 109 mental health and legal professionals who observed
the final interviews of 10 children who reported on events—five falsely and five accurately—the
professionals correctly differentiated between the truthful and the inaccurate accounts only half
the time. This study reflects that even professionals had only a 50/50 chance of identifying a
truthful account.
Swerdlow-Freed noted that the forensic interview protocol was designed to reduce the
impact of suggestibility. Interviewers who follow the forensic interview protocol ask open-
ended questions that do not include information about an event ahead of time. The answers to
such questions, he stated, tend to be the most reliable and accurate. However, he explained, that
assumes that the child has not already been exposed to misleading information. Unfortunately,
interviewers may introduce information to the child during the opening stages of the interview by
using, for example, “option/posing questions,” which are questions that require a yes or no
answer or that provide multiple choices.
Swerdlow-Freed told the court about problems that may occur when an untrained person
questions a child. He explained that untrained persons may repeatedly ask the same question or
may use advanced language that confuses the child. He said that a child may get the sense that
his or her answer was “wrong” when asked the same question multiple times and may change the
answer. Similarly, he explained, children are raised to be cooperative and conversational and
will often attempt to answer a question even if they do not know the answer.
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Turning to the facts of this case, Swerdlow-Freed recalled that the victim’s initial report
occurred during bathing or toileting after the child’s mother saw a speck of blood on tissue. The
mother rejected the child’s first explanation and proceeded to question her about inappropriate
touching. The questioning suggested an answer: that someone touched her inappropriately. The
fact that the mother rejected the child’s first answer was also problematic because that was an
indication of bias. There was also evidence that the mother might have told the child that she
would be in trouble if she did not answer. Swerdlow-Freed stated that the rejection of the child’s
first answer, the repeated questioning, and the pressure to answer were all concerns.
There was also evidence that the doctor at the emergency room questioned the victim and
that the victim was exposed to further questioning by adults after she returned home from the
hospital. There was no way to say for certain what information the child “was exposed to” when
the adults were talking to each other and whether she subsequently incorporated that information
into her memory. Swerdlow-Freed also expressed concern about the evidence that the victim’s
mother had routinely asked her children about inappropriate touching before the events at issue.
He explained that, when a parent is unusually concerned or vigilant about such things, it
heightens the child’s awareness that the child could be touched inappropriately. It also has the
potential to give the child age-inappropriate information.
In addition to the concerns with the circumstances surrounding the initial disclosure and
the victim’s possible exposure to suggested facts, Swerdlow-Freed stated that his review of the
transcripts caused him concern that the victim was in fact susceptible to suggestion. He cited
examples in which the victim reported that she did not remember an event and then, after the
prosecutor repeatedly questioned her and provided suggested details, she changed her testimony.
There was also evidence that she was willing to answer a question to which she clearly did not
know the answer. Swerdlow-Freed testified that the victim’s forensic interview was adequately
conducted, but he opined that there was evidence that the victim’s memory might have been
tainted before the interview.
Swerdlow-Freed was particularly struck by the differences between the mother’s report
of the child’s statements to child protective services and the statements the victim made during
the forensic interview. Her account of the victim’s statements about the central details was so
different from the victim’s statements about the central details at the forensic interview that it
raised red flags. He testified as follows:
What the research shows is that children tend to be very accurate and consistent
about the central details. But, here there’s a discrepancy between what [the
victim] is reporting and what her mother is saying [the victim] told her. So, either
mom is not accurately reporting, which is certainly one hypothesis. And, if she’s
not accurately reporting about this, you know, you have to wonder about what
happened. Or she is accurately reporting and something has happened in [the
victim’s] memory that she’s reporting very different events.
Now, there’s other—there’s other feature[s] of their report that are the
same, and, I want to acknowledge that. But, again, in a situation like you have
here where there was pre-interview, you know, discussions and pressure and
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repeated questioning, and you get these kinds of contradictions. That’s—that’s
when the whole picture raises a flag.
If you take out some of these elements, the picture may be different and
there may not be red flags. But, what I’m saying in this particular instance, you
know, there’s some red flags that have arisen.
Swerdlow-Freed opined that there were also problems with the testimony by
professionals at trial. He specifically found fault with the testimony of Higby and Westfall.
According to Swerdlow-Freed, Higby’s statement that she was comfortable that an assault
occurred was nothing more than an opinion that the victim was telling the truth and, as already
stated, a study showed that professionals have no better than a 50/50 chance of correctly judging
whether a child is accurately relating an event. Likewise, Swerdlow-Freed had seen no research
suggesting that Westfall was accurate when she stated that false positives are very rare.
Swerdlow-Freed stated that a child may not be lying when the child relates a false event.
To lie, the child must typically be aware that he or she is not being truthful. Because the child
believes the memory even though it is false, he informed the court, the child believes that he or
she is accurately describing events. As such, whether the child has a motive to lie was not
necessarily related to whether the child’s memory was false. Similarly, the fact that an adult
does not have a motive to taint a child’s memory does not mean that the adult did not
inadvertently taint the child’s memory.
Jones testified at the hearing that he knew the case was going to be a credibility contest.
He explained that his strategy was to highlight the discrepancies between the victim’s various
statements and to emphasize that children can lie. He explained that he consulted with two
lawyers at his firm and he knew about Swerdlow-Freed because one of the partners at his firm
had used him in the past as a consultant on child suggestibility. Jones said he chose not to
consult an expert, however, because he wanted a “straight line in terms of what I want to
present,” and the facts, he felt, were favorable. He denied that he did not pursue an expert
because defendant did not have the funds to pay for one.
Jones testified that he researched the protocols for forensic interviews, but he did not
recall doing any research on how the circumstances of an initial disclosure might impact the
reliability of the disclosure. He believed that repeated questioning of a child could taint the
child’s memory. He also recalled reviewing one study that his partner utilized in another case on
child suggestibility, but he did not recall what it stated. Jones could not state the distinction
between a child lying and a child relating a false memory. Indeed, he said he did not use the
“term false memories” with the jury because that would be a term from an expert and he relied
on the discrepancies between the victim’s various statements to support his defense theory.
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Nevertheless, he believed that he covered in his closing argument the fact that he did not know
whether the victim believed that what she was relaying was true.3
Jones agreed that he called Westfall as a witness, but he stated that he did so “first and
foremost” because defendant demanded it and “it was not a polite demand.” He thought it was
important to have Westfall testify after the victim testified that she did not recall the forensic
interview—even after she watched the video of it—because he needed to use Westfall to
highlight the discrepancies between the victim’s various statements. Jones said he was
apprehensive about asking experts about numbers because his firm had experienced experts who
testified that children tell the truth 95% of the time. He agreed that he was under the impression
from “other transcripts” that unreliable reports by children were rare, but he questioned the
science. Jones also agreed that he called Higby and that she testified that she was comfortable
that a sexual assault had taken place. He conceded that he was unaware of any studies showing
that trained professionals have only a 50/50 chance of correctly identifying when a child’s
statements are accurate.
In November 2016, the trial court entered its opinion and order. The trial court expressed
concern about Jones’s failure to consult with an expert relevant to his defense. The court found
that Jones lacked a basic knowledge in the field of “child memory, suggestibility, taint, and false
memories.” He reviewed the forensic interview protocols and transcripts from other cases but
“had no specific knowledge on [the] concepts of source monitoring, false memories, contextual
embedding,” and he was unaware of the various studies explaining those phenomena. He also
knew about only one risk factor for an unreliable report—repeated questioning—which was not
even the main risk factor in this case. The trial court opined that Jones’s failure to educate the
jury about these concepts was a direct result of Jones’s “unreasonable decision not to sufficiently
educate himself in this specialized field[.]” In the trial court’s opinion, this lack of knowledge
made it impossible for Jones to make an informed decision regarding whether an expert was
necessary for the defense and made it impossible for him to effectively examine Higby and
Westfall. The court concluded that Jones’s failure to properly investigate these topics fell below
an objective standard of reasonableness under prevailing professional norms and prejudiced
defendant’s trial. Accordingly, the trial court granted defendant’s motion for a new trial.
The prosecution appealed the trial court’s decision to grant defendant’s motion for a new
trial in this Court. Under a separate docket, this Court denied leave to appeal, but indicated that
the denial was without prejudice “to the prosecutor filing a supplemental brief” in this docket.
See People v Carver, unpublished order of the Court of Appeals, entered January 27, 2017
(Docket No. 336307). The prosecution then filed a supplemental brief in this docket, arguing
that the trial court erred when it granted defendant’s motion for a new trial.
3
In his closing, Jones briefly mentioned “memory issues” and whether the victim only changed
her story as the result of repeated questioning and prodding, but he relied on the prosecutor’s
assertion of that point and the jury’s common sense understanding that that may happen.
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II. MOTION FOR A NEW TRIAL
A. STANDARDS OF REVIEW
We review a trial court’s decision to grant a new trial for an abuse of discretion. People v
Grissom, 492 Mich 296, 312; 821 NW2d 50 (2012). A trial court abuses its discretion when it
selects an outcome that is outside the range of reasonable and principled outcomes. People v
Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008). Whether a defendant’s trial counsel
provided ineffective assistance is a mixed question of fact and constitutional law. People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We review a trial court’s factual findings
for clear error. People v Gioglio (On Remand), 296 Mich App 12, 20; 815 NW2d 589, remanded
for resentencing 493 Mich 864 (2012). A finding is clearly erroneous if we are left with the
definite and firm conviction that the trial court made a mistake. Id. at 20-21. We review de novo
the legal question of whether an attorney’s acts or omissions fell below an objective standard of
reasonableness and prejudiced a defendant’s trial. Id. at 19-20.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
“To establish a claim of ineffective assistance of counsel, the defendant must show that
‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing
professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” Gioglio, 296
Mich App at 22, quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L
Ed 2d 674 (1984). In his motion for a new trial, defendant argued that Jones’s failure to
investigate and learn more about the science of child memory and suggestibility fell below an
objective standard of reasonableness under prevailing professional norms.
Jones testified at the evidentiary hearing that he knew this case would be a credibility
contest between the then six-year-old victim and defendant. He nevertheless chose not to consult
an expert on forensic psychology or child memory and suggestibility because, he said, he
preferred to use a more “straight line” defense; that is, he preferred to highlight the discrepancies
between the victim’s various statements and emphasize that children can lie.
Jones could, as a matter of trial strategy, choose to pursue a defense directed solely at
highlighting the discrepancies between the victim’s various statements about the incidents. See
generally People v Pickens, 446 Mich 298, 325; 521 NW2d 797 (1994). However, whether that
decision was reasonable depends on whether his strategic choice was “ ‘made after less than
complete investigation,’ ” because “any choice is ‘reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.’ ” People v
Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012), quoting Strickland, 466 US at 690-691.
A trial strategy is sound if defense counsel develops the strategy in concert with an investigation
that is adequately supported by reasonable professional judgment in light of the facts,
circumstances, pleadings, and law attending the case. People v Grant, 470 Mich 477, 486-487;
684 NW2d 686 (2004) (opinion by KELLY, J.).
Jones testified that he prepared for this case by consulting with two lawyers from his
firm. He admitted that he was generally aware of the phenomenon of child suggestibility
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through a study utilized by his partner in a different case. He also reviewed the protocols
applicable to forensic interviews, which, as he elicited at trial, were intended to prevent “false
positives.” As such, he was well aware that there was scientific support for the contention that
children are susceptible to suggestion and may give “false positives.” Nevertheless, he could not
state the distinction between a child lying and a child relating a false memory, and only knew
one factor that implicated suggestibility—repeated questioning. He further recognized the need
for an expert to explain these phenomena; he stated, for example, that he did not use the “term
false memories” at trial because that term would have to be defined by an expert and he chose to
rely on highlighting the discrepancies between the victim’s various statements. Jones also
reviewed transcripts of expert testimony from other trials and was aware that some experts opine
that children accurately report sexual abuse 95% of the time; he stated that he doubted the
science behind those opinions, but he identified no basis for his doubt.
Jones chose to present a defense that centered on highlighting the differences between the
victim’s statements, as reported by different persons. Because the differences did not suggest
that the victim was mistaken about the abuse—the statements all included a sexual assault, the
surrounding details were simply different—Jones’s preferred defense left him in a position where
he had to argue to the jury that the victim was lying about the assault. Yet, there was no
evidence from any witness tending to suggest that the child had a motive to lie, that her mother
held a grudge against defendant, or that the victim was otherwise coached to make a false
accusation. Rather, the facts tended to suggest that the victim spontaneously revealed to her
mother an incident of sexual abuse by a beloved family member.
Given the evidence of an apparently genuine revelation of abuse and the absence of
evidence of motive to lie, it was highly unlikely that the jury would find that the victim
spontaneously and falsely accused defendant of sexual assault. The jury even asked the trial
court to pose various questions at trial that demonstrated that it was struggling with this issue.
The trial court asked the victim’s mother on behalf of the jury whether she was “in any way at
odds” with defendant or if she had “any disagreements that were kind of broiling at that
particular point?” She responded that if she had, “[h]e wouldn’t have been living in my house . .
. .” The jury also had the court ask her if the victim “had ever lied on Mr. Carver” before the
incident at issue. She stated that the victim had not. The jury’s questions implied concern that,
in the absence of evidence tending to suggest a motive to lie, a child would not normally make
such an accusation.
Jones’s testimony at the evidentiary hearing showed that he had enough knowledge about
the issue of child suggestibility to know that there was a potential defense that did not rely on
arguing to the jury that the victim was a liar. Had he consulted with an expert on this issue, such
as Swerdlow-Freed, he would have obtained a solid grasp of the concept of suggestibility and its
risk factors, he would have learned about the phenomena of source monitoring and contextual
embedding, and he would have had better understanding of the difference between a false
memory and an outright lie. Given that Jones was aware of Swerdlow-Freed at the time of trial
and that his law firm had used him as an expert in other cases, it is virtually certain that, had a
consultation occurred, Jones would have found an expert (likely Swerdlow-Freed) who could
provide him with the tools he needed to rebut testimony by an expert or an investigator
suggesting that it is a rare case in which a child makes a false report. Further, considering
Swerdlow-Freed’s testimony at the evidentiary hearing, had Jones consulted with an expert and
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educated himself about the psychological and developmental issues at play, it is also likely that
he would have understood that it would be helpful to the defense to have an expert who could
explain these matters to the jury and identify the risk factors that were present in this case. With
such testimony, the jury would have been in a better position to evaluate the evidence and
determine whether the sexual assault occurred or occurred in the manner described by the victim.
Jones’s failure to consult with an investigator despite having knowledge of these issues is
analogous to defense counsel’s failure to investigate in People v Ackley, 497 Mich 381; 870
NW2d 858 (2015). In that case, the defendant’s lawyer consulted with an expert who told him
that he did not agree with his defense theory and suggested that he speak with a specific expert
who was both highly qualified and would likely be able to support the defense theory. Id. at 385-
386. Despite this advice, the defendant’s lawyer failed to consult any other experts and did not
call any expert in support of the defense theory at trial. Id. at 384-387. Our Supreme Court
determined that defense counsel’s knowledge of the existence of an expert who could possibly
support the defense theory rendered his decision to confine his pursuit of expert assistance only
to one expert with an opposing viewpoint unreasonable because it left the defense theory without
objective, expert testimonial support. Id. at 392. The Court similarly concluded that defense
counsel’s failure to educate himself on the medical issues that were central to the case prevented
him from making an informed choice regarding his pursuit of expert assistance and left him
insufficiently equipped to challenge the prosecution’s experts. Id.
In this case, Jones knew that the prosecution’s case depended on the credibility and
accuracy of the child victim’s testimony. He performed a limited investigation and learned about
the issue of child suggestibility, which was highly relevant to the accuracy of the victim’s
reports. He was even aware of a potential expert who could offer testimony tending to suggest
that children of the victim’s age are highly susceptible to suggestibility and that suggested
answers might result in the creation of false memories. He thus could have presented expert
testimony explaining how the child victim might honestly—but falsely—believe that defendant
sexually assaulted her. Yet he did not further educate himself about the issue of suggestibility
and chose not to consult with the expert. As was the case in Ackley, Jones’s failure to investigate
left him with an inadequate and objectively unsupported defense theory and rendered him ill-
equipped to examine the professional witnesses he called at trial. Id. at 392. Jones’s decision to
forego further investigation into the issues that were central to the case, particularly given his
limited knowledge and his firm’s previous experience with Swerdlow-Freed, fell below an
objective standard of reasonableness under prevailing professional norms.
Our conclusion is further supported by the Supreme Court’s decision in Trakhtenberg,
493 Mich 38. In Trakhtenberg, an eight-year-old complainant alleged that the defendant, her
father, inappropriately touched her on three or four occasions and once forced her to touch his
genitals. Id. at 43. The defendant was convicted of three counts of criminal sexual conduct as a
result of the allegations. Id. Following trial, the defendant alleged that his defense counsel
provided ineffective assistance. Id. at 44. At an evidentiary hearing, it was revealed for the first
time that the complainant’s mother brought the child to a youth pastor and an organization that
provided treatment services for child victims of abuse for a forensic interview before reporting
the allegations of abuse to the authorities. Id. at 45-46. It was further revealed that the
responding detective asked the mother “to directly ask the complainant whether defendant had
ever touched her ‘private parts’ with his fingers.” Id. at 46.
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At the hearing, the employee who performed the forensic interview testified that she was
unaware that the child had spoken to others about the abuse and that it was “important to know
whether the child has spoken to anyone else in order to conduct a proper forensic interview
because, as a result of repeated interviewing, a child might start to mistakenly believe that
something happened to him or her.” Id. An expert in clinical psychology also testified that she
had “concern regarding the complainant’s knowledge of her mother’s hatred of defendant” and
explained that the mother’s “leading and suggestive questions and the repeated questioning of
the complainant . . . could have tainted the child’s recollection of the events surrounding the
alleged abuse.” Id. Following the hearing, the trial court ruled that defense counsel was
ineffective and that the defendant was entitled to a new trial. Id. at 47.
On appeal, our Supreme Court held that defense counsel “failed to exercise reasonable
professional judgment when deciding to forgo particular investigations relevant to the defense[.]”
Id. at 52. The Court noted that, “given the exposure the complainant had to multiple interviews
and leading questions, a reasonable attorney would have consulted an expert . . . to testify
regarding the propriety of how the complainant made her allegations,” yet defense counsel
“chose not to consult any witnesses or obtain additional evidence before she decided to pursue a
defense strategy for which she concluded that no further investigation was necessary.” Id. at 54.
Similar to the young complainant in Trakhtenberg, testimony reveals that the five-year-
old victim in this case made her allegation of abuse after her mother rejected her first explanation
and proceeded to pressure and question the child in a suggestive manner. The evidence further
reveals that the victim was exposed to additional questioning at the emergency room and by
adults after she returned home, and may have been privy to age-inappropriate information
because her mother routinely asked her children about inappropriate touching before the incident
in question. A reasonable attorney under the circumstances would have understood the need to
consult an expert regarding the propriety of how the victim made her allegations. Yet Jones
decided to pursue a defense strategy for which he concluded that no further investigation was
necessary before consulting such an expert or educating himself on the concept of child
suggestibility and its associated risk factors. This decision amounted to a failure to exercise
reasonable professional judgment. See Trakhtenberg, 493 Mich at 53-54.
On appeal, the prosecution argues that the trial court erred when it determined that
Jones’s investigation was inadequate on various grounds. It argues that the trial court clearly
erred when it accepted Swerdlow-Freed’s testimony that the victim’s memory must have been
exposed to taint. The trial court, however, did not find that the victim’s testimony was in fact
tainted. It stated that Jones’s failure to investigate left the jury uninformed about the possibility
that the victim’s statements could have been “the result of taint and suggestibility. . . .” As such,
the jury was not in a position to “fairly evaluate the evidence” and did not know that it was at
least “possible” that the victim “reported events that did not actually happen[.]”
The prosecutor also complains that the trial court apparently credited Swerdlow-Freed’s
“unsubstantiated belief” that false reports are not rare, even though, it states, there are studies to
the contrary. Swerdlow-Freed did not testify that false reports are common; he testified
extensively about the problem of suggestibility and related phenomena and the risk factors
implicating false memories. He then opined that it was possible for a child to have a false
memory of an event and, as a result, believably report the false memory. He also testified that
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studies show that a significant percentage of children exposed to taint will incorporate false
details into their reports. He nevertheless related that children tend to reliably report the core
details when not exposed to taint. He also noted studies that showed that, even when exposed to
taint, only a portion of the children studied incorporated false details, which amounted to an
implicit recognition that a significant percentage of children will accurately report an event even
after being exposed to possible taint. As the trial court correctly noted, Swerdlow-Freed’s
testimony, if it had been presented to the jury, would have provided the jury with the context for
properly evaluating the child victim’s statements. Without that context, however, the jury could
not reject the accuracy of the victim’s report unless it essentially found that she was lying. Given
the facts of this case, such a finding was highly unlikely.
The prosecution also argues that the trial court’s jury instruction on witness credibility,
which was consistent with M Crim JI 3.6, adequately informed the jury that it could evaluate the
victim’s age and maturity when considering her testimony. That instruction did not address the
problem of child suggestibility and false memories and could not serve as a substitute for expert
testimony on these matters because the phenomena are plainly beyond the ken of common
knowledge. See MRE 702; People v Bynum, 496 Mich 610, 626; 852 NW2d 570 (2014) (stating
that expert testimony may be necessary when the evidence implicates matters that are beyond the
ken of common knowledge). Had the defense called Swerdlow-Freed, he could have offered
testimony about these phenomena and the related risk factors. That testimony would have given
the jury a better understanding of the problems of credibility peculiar to the very young witness
involved in this case and would have explained how she might have believably reported an event
that did not happen or that happened in way that was substantially different from what she
reported. See, e.g., People v Christel, 449 Mich 578, 592-593; 537 NW2d 194 (1995)
(recognizing that expert testimony may be necessary to explain behaviors or responses of a
victim that might appear incomprehensible to average people and stating that the expert’s
testimony might help the jury properly evaluate the witness’s testimony).
The prosecution suggests that the trial court was mistaken when it opined that credibility
was the ultimate issue because there was no physical evidence. It notes that there were phone
records that showed that one of the victim’s statements—that the incident occurred when her
mother was on the phone with her aunt—could not be true; and there was medical testimony that
the victim did not have any physical injuries. In context, the trial court was referring to the
absence of physical evidence tending to show that defendant did in fact sexually assault the
victim—that is, it recognized that the prosecution’s case depended on convincing the jury that
the victim was accurately reporting the assault. The trial court’s characterization of the case was
correct, and the prosecution’s claim to the contrary is disingenuous.
The prosecution finally argues that, even if Jones’s failure to investigate fell below an
objective standard of reasonableness under prevailing professional norms, the trial court erred
when it determined that the failure prejudiced defendant’s trial. In order to warrant a new trial
on the basis of ineffective assistance, defendant need only show that there is a “reasonable
probability” that the outcome would have been different. Gioglio, 296 Mich App at 22. Had
Jones properly investigated the issue of child suggestibility and false memories, he would have
realized the need for expert testimony on the unique issues involving accusations by very young
children. See Bynum, 496 Mich at 626; Christel, 449 Mich at 592-593. An expert could have
explained how a child of the victim’s age was susceptible to suggestion and might inadvertently
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incorporate false information into her memories. With that testimony, Jones could have
plausibly argued that the victim’s report of sexual assault was false, even though she might
honestly believe it was true, and even though there was no evidence that the adults in the
victim’s life had a motive to cause her to make a false allegation. With that information before
the jury, defendant’s theory of the case would not have depended on convincing the jury that the
victim lied when she accused him of sexual assault—that is, it would not have “existed in a
vacuum of his own self-interest.” Ackley, 497 Mich at 397. The failure to investigate deprived
Jones of the tools he needed to raise an adequate defense at trial; as such, we conclude that the
failure sufficiently undermined confidence in the outcome to warrant a new trial.
III. CONCLUSION
The trial court did not err when it determined that Jones’s failure to investigate fell below
an objective standard of reasonableness under prevailing professional norms and that there is a
reasonable probability that, but for the unprofessional error, the outcome of the proceeding might
have been different. Consequently, it did not abuse its discretion when it granted defendant’s
motion for a new trial on that basis. Because the trial court did not abuse its discretion by
granting defendant’s motion for a new trial, we need not address whether defendant’s remaining
claims of error would also warrant a new trial.
The trial court’s order granting defendant a new trial is affirmed, defendant’s conviction
and sentence are vacated, and the case is remanded for a new trial. We do not retain jurisdiction.
/s/ Michael F. Gadola
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