No Misconduct Requiring Reversal Even Though Prosecutor “Crossed The Line” With Comments

The prosecutor in a criminal sexual conduct trial “cross[ed] the line” when he stated during closing argument that victims “have the right to be believed,” the Michigan Court of Appeals has ruled in a published opinion.

“In a court of law, no witness has a ‘right to be believed,’” the Court of Appeals wrote in People v Rohm (Docket No. 369338). “A witness has the duty to testify truthfully to the best of his or her ability, and the factfinder (whether judge or jury) has the corresponding duty to assess the credibility of that witness and evaluate the weight, if any, to give to that witness’s testimony. A free-standing notion of the ‘right to be believed’ is antithetical to the rule of law, as it would require Lady Justice to slip the blind from one eye and tilt the scale of justice in favor of one witness to the detriment of all others.”

Accordingly, “[i]t was wrong for the prosecutor to assert such a right during closing in defendant’s criminal trial,” the Court of Appeals stated.

Despite this error, “the evidence of defendant’s guilt was overwhelming, and the trial court correctly instructed the jury with respect to the jury’s duty to evaluate witness credibility and the weight of testimony,” the Court of Appeals said. “Given this, the prosecutor’s misstatement of law did not cause reversible error. Finding no other errors warranting reversal, we affirm [the defendant’s conviction].”

Judge Brock A. Swartzle wrote the opinion, joined by Judge Michael F. Gadola and Judge Mark T. Boonstra.

Judge Swartzle also issued a separate concurring opinion, “to reiterate my jeremiad against the use of the term ‘victim’ to refer to a complainant in a case like this one, in open court before the jury, prior to any finding of guilt.”

The defendant has since filed an application for leave to appeal with the Michigan Supreme Court (Docket No. 169514).

Background

The defendant was accused of sexually assaulting his daughter, NR, when she was about 6 years old. NR’s grandmother reported to police that she was concerned “something had happened to NR.” When the Child Advocacy Center interviewed NR and a medical examination was performed, NR said the defendant had “touched her genitals with his hands and penis.”

The defendant was charged in Otsego County Circuit Court with eight counts of first-degree criminal sexual conduct and two counts of attempted first-degree criminal sexual conduct (CSC-I) under MCL 750.520b(2)(b) and MCL 750.92. During jury selection, counsel used the term “victim” when questioning prospective jurors. The trial court subsequently acknowledged the word “victim” had been used and told prospective jurors that “’we all know it’s an alleged victim’ because of the prosecutor’s unproven allegations and defendant’s presumption of innocence.”

During closing argument, the prosecutor explained the rights of victims, including the right to be notified of, and be present at, court proceedings and the right to speak at sentencing. The prosecutor added, “And most important of all these rights is that when someone comes forward and has the courage and the bravery to report something as awful as was done to [NR] as in this case, they have the right to be believed.” The prosecutor also stated “[h]ow awful” it was for NR to have to testify and that “[k]ids don’t make up stuff like this.” Defense counsel did not object.

After closing arguments, the trial court instructed the jury and, among other things, stated: “It is my duty to instruct you on the law. You must take the law as I give it to you, so if a lawyer said something different about the law, follow, instead, what I say. … The lawyers’ statements and their arguments are not evidence. … You must decide which witnesses you believe and how important you think their testimony is. You do not have to accept or reject everything a witness said. Instead, you’re free to believe all, none, or part of any witness’s testimony.”

The jury found the defendant guilty on all eight counts of CSC-I and two counts of attempted CSC-I. The trial court sentenced the defendant to 25 to 50 years on the CSC-I convictions and 40 months to five years on the attempted CSC-I convictions, with the latter sentences to run consecutive to two of the former sentences.

The defendant appealed.

Prosecutor’s Statements

On appeal, the defendant presented numerous arguments, including that he was denied a fair trial because the prosecutor engaged in misconduct by making “inappropriate comments” during the proceedings.

First, the Court of Appeals addressed the defendant’s assertion that the prosecutor inaccurately stated the defendant never denied the allegations and had admitted guilt. “During closing arguments, the prosecutor is allowed to argue reasonable inferences from evidence in the record and is not confined to argue in the ‘blandest possible terms,’” the Court of Appeals noted, citing People v Aldrich, 246 Mich App 101 (2001). “And that is what the prosecutor did here. … Moreover, and importantly, the jurors watched the video of the interview, and they could decide for themselves whether defendant made any admissions, tacit or otherwise.”

Next, the Court of Appeals turned to the defendant’s claim that it was improper for the prosecutor to use the term “victim” when referring to NR in closing arguments. “Our case law makes clear that the use of the term ‘victim’ is not deemed to be reversible error when the ‘prosecution’s use of that term could not have suggested anything to the jury of which it was not already aware,’” the appeals court said, referencing People v Wisniewski, ___ Mich App ___ (2025) (Docket No. 361978).

“The jury was aware, based on the trial court’s comments during voir dire, that when parties used the term ‘victim,’ they were referring to the complainant as the alleged victim,” the Court of Appeals wrote. “The jury was also aware that the lawyers’ arguments were not evidence, per the trial court’s instructions. Thus, under our case law, there was no reversible error with respect to the use of the term ‘victim.’”

No ’Built-In’ Advantage

The Court of Appeals continued by addressing the defendant’s argument that several of the prosecutor’s comments “amounted to witness vouching that impermissibly undermined his presumption of innocence.”

In particular, the Court of Appeals noted that during closing arguments, the prosecutor asserted it was “awful” for NR to have to testify and that children “would not fabricate” allegations of sexual abuse. “Such comments are better viewed as attempts to bolster credibility based on a juror’s commonsense judgment, as opposed to impermissible vouching based on a prosecutor’s special knowledge,” the appeals court said. “These comments did not invade or otherwise undermine the province of the jury as the final judge of the credibility and weight of NR’s testimony. … Similarly, these comments were not so shocking as to inflame the jury and thereby prejudice defendant.”

However, “the prosecutor did cross the line when he stated that victims, like NR, ‘have the right to be believed,’” the Court of Appeals emphasized. “In a court of law, no witness has a free-standing ‘right to be believed’ by the finder of fact. If such a right existed, then it would be incumbent on the jury to accept such testimony, both in terms of credibility and weight. But this would go directly against the oft recognized principle that ‘a jury is free to believe or disbelieve, in whole or in part, any of the evidence presented.’”

According to the Court of Appeals, this case is not the only instance in a criminal trial where such a purported right has been asserted. “Prosecutors across the country have asserted such a right, and those assertions have been roundly rejected by both federal and state courts. … Simply put, no witness begins testifying with a built-in advantage under the law.”

In addition, the prosecutor’s statement in this case cannot “be explained away as merely rhetorical flare,” the Court of Appeals observed. “Just before asserting that a victim had the right to be believed, the prosecutor listed several actual legal rights that a victim does enjoy, including the right to attend court proceedings and give a statement at sentencing. By grouping the asserted ‘right to be believed’ together with several actual rights, the prosecutor created the impression that each of them stood on equally sound legal footing. This was error, and it was plain. To its credit, the Attorney General’s office, representing the people on appeal, has conceded the error.”

Despite this plain error, the Court of Appeals held that reversal was not warranted. “There was overwhelming evidence of defendant’s guilt, including the testimony of NR, her mother, her grandmother, her teachers, the doctor, and police officers. The jury watched the video of defendant’s interview with police, during which he made arguably damning statements. In addition, and critically, the trial court properly instructed the jury, explaining that the trial court, not the lawyers, sets forth the law for the jury to follow. The jury was instructed that defendant is presumed innocent, that closing statements are not evidence, and that the jurors, as the finders of fact, were to decide whether to, and to what extent, credit and weigh the testimony of each witness. These instructions cured any prejudicial effects that the prosecutor’s comments may have had.”

In conclusion, “[w]hile most of [the defendant’s] claims are without merit, the prosecutor did err in asserting that NR had ‘the right to be believed,’” the Court of Appeals held. “As explained, however, this was not reversible error.”