Justice Michael F. Cavanagh, the Michigan Supreme Court overturned the conviction of John Musser, finding that the trial court erred in allowing all portions of the defendant's videotape recorded interrogation to be played for the jury.
In People v Musser, Docket No. 145237, the problem rested in the officer's repeated assertions during the interrogation of his opinion that the complainant, an 11-year-old girl, was credible. Statements of the officer in charge were admitted at the defendant's trial such as, "Again, if there’s no reason for her to make this crap up, why would she say it? This is the last thing . . . she wanted to do was talk to a total stranger about something like this. Why? Why is she gonna put herself through that if it didn’t happen? We can’t find anything. Kids don’t lie about this stuff." Additionally, the officers stated, "But if she’s saying you touched her breasts—I wasn’t there for the interview [of the complainant] but [Kolakowski, who has] done a lot of interviewing, said, 'Bill, there’s no question this happened and the stuff that I’m aware of he probably did'— we just need to know why." On top of these statements, Ofc. Kolakowski testified during the trial that he had received specialized training in conducting forensic interviews of children, he had done 100's of forensic interviews and that 11-year-olds such as the complainant here know the difference between the truth and a lie. Musser testified at the trial and denied the allegations.
The trial court had denied Musser's motion to suppress the statements, finding that they gave context to the defendant's answers to the interrogator's questions. The Court of Appeals agreed and affirmed Musser's convictions of two counts of CSC 2d Degree and one count of assault and battery (which was given to the jury as a lesser included offense of assault with intent to commit CSC 2d Degree). In reversing the Court of Appeals, the Supreme Court simply relied on the Michigan Rules of Evidence.
The Court did not go so far as to say that a bright line rule exists mandating the exclusion of such statements vouching for the credibility of witnesses, but found here that the admission of the interrogator's statements during the interview did not satisfy MRE 401. The statements held no probative value, and even if they did, any probative value was substantially outweighed by the danger of unfair prejudice in this case where the trial was a credibility contest between the complainant and the defendant. No physical evidence existed to support the allegations. The Court found that the stated reason of the trial court for admitting the statements - that they gave context to the defendant's answers - was unsupported by the record. The above statements were irrelevant for that purpose.
Musser was represented on appeal by former Kent County Circuit Court Judge Dennis Kolenda, who is now of counsel to Dickinson Wright in their Grand Rapids office. Many of you may be familiar with Judge Kolenda's State Bar publication "Potentially Dispositive Pretrial Motions," published by the criminal law committee. It is an excellent reference for those practicing criminal defense in the State of Michigan.