# People v. Shaw

> Michigan Court of Appeals · June 14, 2016 · 315 Mich. App. 668

URL: https://www.frixlaw.com/law-library/cases/9824125

## Case

- **Full name:** People of Michigan v. Barry Davis Shaw
- **Court:** Michigan Court of Appeals
- **Decided:** June 14, 2016
- **Citations:** 315 Mich. App. 668; 892 N.W.2d 15; 2016 Mich. App. LEXIS 1155
- **Precedential status:** Published
- **Opinion:** Concurrence by Gleicher
- **Judges:** Gleicher, Jansen, Shapiro
- **Cited by:** 181 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9824125

## How later opinions describe it (automated extraction)

- holding that it was reasonably probable that the outcome of the trial would have been different had defense counsel objected to the inadmissible hearsay testimony of several witnesses, including an examining physician and an officer who essentially gave “an official stamp of a…
- concluding that the victim’s hearsay statements were not admissible under MRE 803(4) because they were made during an examination that occurred seven years after the last alleged instance of sexual abuse and for the purpose of investigation rather than diagnosis and treatment
- finding the victim’s statements to a doctor were not admissible under MRE 803(4) when police referred the victim for examination 7 years after the occurrence of the alleged sexual abuse

## Opinion text

GLEICHER, RJ.
(concurring). I fully concur with the majority opinion. I write separately to broach an issue likely to arise during the new trial and not addressed by the parties.
Dr. Stephen Guertin testified as an expert witness for the prosecution based on his examination of the 23-year-old complainant. As the majority opinion states, Dr. Guertin “recounted in detail the complainant’s statements to him about the [sexual] abuse.” Dr. Guertin also performed gynecological and rectal ex- *689 animations. At the trial he advanced two expert opinions: that the appearance of the complainant’s hymen was more consistent with “child sexual assault” than with “consensual penile-vaginal intercourse” and that her chronic anal fissure “clearly could be from uncon-sensual sodomy.”
In my view, the record does not establish Dr. Guer-tin’s qualification under MRE 702 to render either opinion. Dr. Guertin testified that he is board certified in pediatrics and pediatric critical care. He detailed his extensive experience in examining children referred to him for evaluation of possible child abuse. But he provided no testimony whatsoever concerning his experience, education, or training in adult gynecology or rectal examination and .diagnosis in adult women, if any. Whether the appearance of the complainant’s hymen was entirely consistent with consensual adult sexual activity or suggested sexual abuse during childhood formed a critical issue in this case. An expert’s view on this subject is certainly relevant, but under MRE 702 must also qualify as reliable. “The Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony .. . rests on a reliable foundation ... .” People v Kowalski, 492 Mich 106, 149 ; 821 NW2d 14 (2012), quoting Daubert v Merrell Dow Pharm, Inc, 509 US 579, 597 ; 113 S Ct 2786 ; 125 L Ed 2d 496 (1993) (brackets omitted).
The breadth and depth of Dr. Guertin’s experience in performing pelvic examinations on adult, sexually active women should figure prominently in a new trial evaluation of his qualifications to testify as an expert on this subject. Similarly, Dr. Guertin’s training, education, and experience in evaluating the rectum of an adult woman who has engaged in consensual anal sex *690 must be considered before he is permitted to offer expert opinions in this regard. Because the testimony of the complainant’s boyfriend regarding the nature and extent of his sexual relations with the complainant will be admitted on retrial, the extent of Dr. Guertin’s experience in examining sexually active adult women constitutes information integral to the court’s performance of its gatekeeping function.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9824125. Public record. Not legal advice.