In many criminal prosecutions, including criminal sexual conduct and other felony cases, the prosecutor attempts to use “expert” testimony. For example, the prosecutor may use a “counselor” to offer testimony about a child’s behavior which is “consistent with” children who have suffered a similar type of trauma.

“Consistent with” testimony is perhaps the most abused junk science by prosecutors and judges against a defendant in trial. In a perfect world, expert opinion that is not supported by true scientific evidence should be kept away from a jury.

In addition to a prosecutor’s frequent use of junk science on matters involving behavioral sciences, there is also a problem with the hard sciences. Many times, courts are weak in requiring the prosecution to adequately prove the validity of their scientific evidence such as police equipment, procedures, and test results.

For many years the crime lab at the Michigan State Police was an absolute disaster. Yet, many people were prosecuted with evidence from that crime lab.

Therefore, in some criminal cases, it is critical that the defense have effective experts to counter the sometime ridiculous opinions of the prosecution’s witnesses. Recently, in a very important case, the Michigan Supreme Court issued an unusual, unanimous opinion upholding a defendant’s right to present expert testimony.

In People v Ackley, the defendant was convicted of first degree child abuse when his girlfriend’s three year old daughter died while he was watching her. The prosecution had five medical experts who swore that the only way the child could have died was by abuse. The defendant had zero medical experts, because his lawyer decided not to use one.

The Supreme Court ruled that the defendant had a right to put on an expert witness. In Ackley, the science was very important. The child died from a closed head injury. The defendant said he found the child lying on the floor next to her bed in her room where she had been napping. However, the police alleged that he killed the child by shaking or some force of trauma. The defendant said that she died from the fall from the bed or some other accidental fall.

Since there were no eye witnesses or evidence to clear it up, then it came down to an opinion of experts as to how her fatal head trauma may have been caused. The prosecution put on five witnesses. The defense attorney put on no experts. The Supreme Court found that, the defense lawyer was so incompetent in not putting on an expert when science was a critical factor in the case, the defendant deserved a new trial.

The Sixth Amendment of the United States Constitution provides that every criminal defendant has the right to effective assistance of counsel. To be effective, your attorney should use expert witnesses as aggressively as possible. At Nye & Associates, we evaluate each criminal case with an eye toward challenging the validity of experts and science of the prosecution.


Nye & Associates will defend your criminal case in Roscommon, Grayling, Saginaw, and the surrounding area.