Obligation of defense attorney to request an expert witness.

People v Owens, Unpub, (288074, 11/2/2010)

Defendant was charged with CSC.  Prosecutor argued victim credibility based on the ‘forensic interview’ of the victim.  A reasonable trial counsel presented with these facts would have investigated the limitations on the forensic interview process and would have called an expert to testify about those limits as well as about the common behaviors of adults who sexually abuse children.  At the Ginther hearing, defense counsel stated that he did not do any research on sexual abusers' behavior patterns or consult an expert because he believed that "it was obvious that this [offense] wouldn't happen . . . under these circumstances." The court concluded that had defense counsel engaged in proper investigation, he would have learned that adults who sexually abuse children often engage in specific acts to "groom" their victims. Since there was no evidence that defendant ever engaged in grooming behavior with the alleged victim or any other child, defense counsel could have used an expert's testimony "to provide context for the allegations and to highlight the improbable nature" of the victim's description of events. O, the proposed defense expert, testified at the Ginther hearing that she could have offered expert testimony that external factors in the case might have impacted the victim's description of the incident. O explained that several factors such as the victim's age, questioning by her family and others before the forensic interview, and the victim's family's criticism of defendant during the ride home about his treatment of the victim's brother (who was dating defendant's daughter) could have tainted the victim's memory of the events. O also could have offered testimony that the forensic interview was not dispositive of whether the victim's account of the incident was tainted by interaction with her family. For that reason, defendant’s trial counsel’s decision not to investigate and call an expert on this area fell below an objective standard of reasonableness under prevailing professional norms. Further, because this case involved a close credibility contest, we cannot conclude that this error was harmless.  See also People v Yost, 278 Mich App at 387.