People v Alexander

majority opinion

Michigan Supreme Court

Lansing, Michigan

Syllabus

Chief Justice: Justices:

Megan K. Cavanagh Brian K. Zahra

Richard H. Bernstein

Elizabeth M. Welch

Kyra H. Bolden

Kimberly A. Thomas

Noah P. Hood

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong

PEOPLE v ALEXANDER

Docket No. 168009. Argued on application for leave to appeal April 9, 2026. Decided

July 15, 2026.

Defendant, Gwendolyn Josephine Alexander, was convicted following a jury trial in the

Wayne Circuit Court, Mariam Saad Bazzi, J., presiding, of one count of torture, MCL 750.85, one

count of second-degree child abuse, MCL 750.136b(3), one count of second-degree child abuse in

the presence of another child, MCL 750.136d(1)(b), and one count of third-degree child abuse,

MCL 750.136b(5). Defendant’s six-year-old son, MA, was transported to an emergency room

after a police officer conducting a welfare check observed bruising, swelling, and scarring on his

body. The treating physician observed swelling around MA’s ankles and hyperpigmented scars

on his ankles and wrists, and she rendered a diagnosis of nonaccidental lesions and possible child

abuse. Defendant admitted to police that she and her partner and codefendant, Errown Scott, had

tied MA up with a belt around his wrists for hours at a time. At trial, MA testified that Scott had

on several occasions, in defendant’s presence, restrained him using zip ties. Dr. Dena Nazer, an

expert in child abuse pediatrics and general pediatrics, testified that she had diagnosed MA with

“medical torture,” which she explained was a clinical diagnosis reserved for children exposed to

at least two physical assaults accompanied by at least two forms of psychological maltreatment.

On cross-examination, Dr. Nazer acknowledged that the legal definition of “torture” and the

medical definition of the term “medical torture” were not necessarily the same and that she was

unable to testify about the legal definition of the term “torture.”

The Court of Appeals, K. F. KELLY, P.J., and CAVANAGH and RIORDAN, JJ., affirmed

defendant’s convictions, but it vacated her sentences because of a guidelines scoring error and

remanded for resentencing. ___ Mich App ___ (November 20, 2024) (Docket No. 364063).

Defendant sought leave to appeal in the Supreme Court, which ordered oral argument on the

application, directing the parties to address whether Dr. Nazer invaded the province of the jury by

using the phrase “medical torture” to label her diagnosis of MA. ___ Mich ___; 21 NW3d 211

(2025).

In a unanimous opinion by Chief Justice CAVANAGH, in lieu of granting leave to appeal,

the Supreme Court held:

Dr. Nazer’s expert testimony concerning the diagnosis of medical torture was improper because the testimony was unhelpful to the jury, lacked a reliable foundation, and invaded the province of the jury in determining whether defendant was guilty of the crime of torture. However, defendant was not entitled to relief because, in light of the strong evidence properly admitted, she failed to establish that the unpreserved error affected the outcome of the proceedings.

1. Dr. Nazer’s testimony was inadmissible under MRE 702 because it was unhelpful to the jury in determining a fact in issue and it lacked a reliable foundation. Expert testimony is only helpful and therefore admissible if it involves a matter that is beyond the common understanding of the average juror, and testimony that lacks a reliable foundation is similarly unhelpful to the jury. An expert’s medical opinion might be helpful, in some cases, to explain a particular injury or the mechanism of a particular injury. However, Dr. Nazer’s diagnostic testimony did not explain the nature, extent, or timing of MA’s physical symptoms in a way that would help the jury determine whether MA suffered great bodily injury, an element of the crime of torture. Further, when an opinion is based solely on what the victim relays to a doctor, in the absence of any evidence qualifying the doctor as an expert in assessing credibility, the opinion lacks a reliable foundation. Dr. Nazer’s testimony concerning the psychological maltreatment component of the medical torture diagnosis was based on little more than Dr. Nazer’s crediting MA’s account of events, and it was therefore unreliable.

2. Dr. Nazer’s testimony was also improper because it invaded the province of the jury and ran afoul of the principles laid out in People v McFarlane, 325 Mich App 507 (2018), which held that the trial court erred when it allowed a child abuse pediatrician to testify that she had diagnosed the infant victim with “abusive head trauma” and that the injuries amounted to child abuse. An expert witness may not express an opinion on the defendant’s intent or criminal responsibility. Whether a defendant is guilty or innocent is tantamount to a legal conclusion, and an expert witness may not testify about the requirements of law that apply to the particular facts in the case or phrase an opinion in terms of a legal conclusion. As in McFarlane, the expert testimony diagnosing MA with medical torture came too close to findings that are left exclusively to the jury. The lay meaning of torture—the infliction of intense pain to punish, coerce, or afford sadistic pleasure—maps closely to the intent element of the crime of torture, i.e., that the defendant intended to cause cruel or extreme physical or mental pain and suffering. Dr. Nazer’s diagnosis of medical torture likely impressed upon the jury an opinion on defendant’s criminal responsibility for the crime for which she was on trial—torture. That the diagnosis was labeled medical rather than legal was immaterial because, regardless of the label given, the diagnostic terminology clearly posed a danger of confusing the doctor’s medical diagnosis with the legal determination.

3. Defendant failed to establish that the unpreserved evidentiary error constituted plain error affecting her substantial rights. Although Dr. Nazer’s testimony was improper under MRE 702, it was questionable whether admission of the testimony was a clear or obvious error. Moreover, even without Dr. Nazer’s problematic testimony, other compelling evidence, untainted by the medical torture diagnosis, remained, including medical testimony about MA’s injuries, MA’s testimony that he had been zip-tied, and defendant’s admissions; therefore, even assuming that the error was plain, defendant did not show that it affected the outcome of the proceedings.

Affirmed.

Michigan Supreme Court

Lansing, Michigan

OPINION

Chief Justice: Justices:

Megan K. Cavanagh Brian K. Zahra

Richard H. Bernstein

Elizabeth M. Welch

Kyra H. Bolden

Kimberly A. Thomas

Noah P. Hood

FILED July 15, 2026

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 168009

GWENDOLYN JOSEPHINE

ALEXANDER,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

CAVANAGH, C.J.

In this case, we consider whether it was improper for an expert witness to testify

that she diagnosed the child victim with “medical torture” at a trial where defendant was

accused of the crime of “torture,” MCL 750.85. We hold that admission of this testimony

was erroneous, but we nonetheless affirm defendant’s convictions because we are

unpersuaded that she has established entitlement to relief under the plain-error standard of

review.

I. FACTS

In June 2019, defendant, Gwendolyn Alexander, and her partner and codefendant,

Errown Scott, moved into a trailer parked on a vacant lot next door to the home of Scott’s

mother. Collectively, the two had three young children, MA, RS, and MS. 1 Throughout

the summer, the children spent the majority of the time with Scott’s mother in her house.

In the fall of 2019, however, Scott’s mother began experiencing health issues, and

therefore, the bulk of the caregiving responsibilities returned to defendant and Scott.

In early January 2020, defendant sent a text to MA’s godmother, requesting that she

take custody of six-year-old MA. According to the godmother, defendant stated that she

was “going to give [MA] away” and that “[s]he was tired of him.” A few weeks later, the

godmother contacted law enforcement for a welfare check. A responding police officer

testified that the trailer was “dirty and gross,” with water bottles of urine on the floor

alongside rancid food and raw meat. Moreover, the officer observed that MA had bruises

on his face, swelling on his neck, and “thick, thick scarring on his wrists.” A responding

emergency medical technician (EMT) also testified that he saw ligature marks around

MA’s wrists and ankles and bruising on MA’s face.

Based on these discoveries, all three children were transported to a local emergency

room. Dr. Shazia Maqbool, the emergency room physician who treated the children,

testified that she observed swelling and tenderness around MA’s ankles and linear

hyperpigmented scars on his ankles and wrists. 2 She diagnosed MA with “suspicious” or

Scott is not the biological father of the oldest child, MA, but is the biological father of RS and MS.

Pictures of the injuries were admitted as exhibits at trial.

“nonaccidental” lesions and “[p]ossible child abuse.” 3 Dr. Maqbool did not observe any

“significant findings” as to three-year-old RS or one-year-old MS.

Thereafter, police interviewed defendant, and, during the interview, defendant

admitted that MA had been tied up with a belt around his wrists. Defendant stated that she

tied MA up at least twice and that Scott also tied MA up on several occasions. She

explained that MA would be tied up for a few hours at a time, ostensibly because defendant

was unable to watch him and keep him out of trouble. According to defendant, MA caused

his own injuries when he struggled against and tried to “weasel” out of the restraints.

Defendant also admitted that MA would often be disciplined with a belt or a ruler and that

she took him out of school because of behavioral “difficulties.”

Defendant and Scott were arrested and criminally charged with child abuse and

torture. The two were tried jointly before separate juries. MA, who was eight years old at

the time of the September 2022 trial, testified that Scott “zip tied” his hands. He also

testified that Scott zip-tied him around his stomach to the couch. MA denied that defendant

tied him up using zip ties but testified that defendant was present when Scott restrained

him. MA agreed that he was tied up more than 5 but fewer than 10 times and that it

happened inside the trailer. MA explained that he got “a scar” from being zip-tied but that

the scars were gone by the time of trial. MA also testified that Scott hit him with a sandal,

that he slept on the floor in the trailer, and that he stopped going to school. In addition,

six-year-old RS testified that she saw Scott zip-tie MA once and that defendant was home

at the time.

Defendant does not argue that this testimony was improper.

Dr. Dena Nazer, the medical director of Kids-TALK Children’s Advocacy Center,

testified at trial as an expert in child abuse pediatrics and general pediatrics. Dr. Nazer

explained that she evaluated children referred to her for suspected child abuse. On

March 3, 2020, six weeks after the welfare check, she evaluated MA, RS, and MS. Dr.

Nazer’s typical evaluation included reviewing medical records, information provided by a

forensic interviewer, and medical history provided by the child’s guardian, as well as a

discussion with and a physical examination of the child. Following her evaluation of MA,

Dr. Nazer diagnosed him with “medical torture,” and she explained:

[M]edical torture is a clinical diagnosis. It’s a medical diagnosis that we give

children who have been exposed to at least two different physical assaults,

so two physical assaults at two different times.

And it’s not just the physical assaults. To qualify for the diagnosis of

medical torture, it has to be accompanied by at least two psychological

maltreatments or two forms of psychological abuse.[4]

She testified that medical torture was not a common diagnosis and was “reserved for severe

cases” 5 and based, in part, “on the criminology of the psychological maltreatment.” On

cross-examination, Dr. Nazer acknowledged that the legal definition of “torture” and the

We note that at oral argument before this Court, the prosecutor clarified that the diagnosis is more commonly referred to as “child torture.” See Knox et al, Child Torture as a Form of Child Abuse <https://www.tdcaa.com/wp-content/uploads/Knox-Torture-as-a-Form-ofChild-Abuse-article.pdf> (accessed July 13, 2026) [https://perma.cc/JDG5-P4TG]. A “child torture” diagnosis was first used by Knox, the coauthor of this 2014 article. See State v Hawkey, 2016-Ohio-1292, ¶ 75; 62 NE3d 721 (Ohio App, 2016) (noting that the expert had created the definition of child torture and that her article had not been published as of 2013).

Although RS’s evaluation rendered no physical signs of abuse, Dr. Nazer also diagnosed RS with “medical torture” “based on what [RS] disclosed.”

medical definition of the term “medical torture” were not necessarily the same and that she

was unable to testify about the legal definition of the term “torture.”

Eventually, Dr. Nazer testified that the injuries on MA’s wrists and ankles were

consistent with a history of being zip-tied. When asked why she believed that MA was

psychologically abused, Dr. Nazer testified that he was subject to deprivation, isolation,

and intimidation. She explained that to reach these conclusions she relied on the forensic

interview and “on other information.”

Defendant was ultimately convicted of one count of torture, MCL 750.85, one count

of second-degree child abuse, MCL 750.136b(3), one count of second-degree child abuse

in the presence of another child, MCL 750.136d(1)(b), and one count of third-degree child

abuse, MCL 750.136b(5). The jury acquitted defendant of one count of third-degree child

abuse concerning RS. Defendant was sentenced to 17 to 30 years’ imprisonment for the

torture conviction, 6½ to 10 years’ imprisonment for the second-degree child abuse

conviction, 6½ to 10 years’ imprisonment for the second-degree child abuse in the presence

of another child conviction, and 96 days in jail for the third-degree child abuse conviction.

Defendant claimed an appeal of right. In a published opinion, the Court of Appeals

affirmed defendant’s convictions, but it vacated her sentences because of an offensevariable-scoring error and remanded for resentencing. 6 People v Alexander, ___ Mich App

___, ___; ___ NW3d ___ (November 20, 2024) (Docket No. 364063); slip op at 1.

The prosecutor did not appeal this ruling, so it is not before the Court. Because we now affirm defendant’s convictions in this opinion, the trial court may proceed on remand with resentencing as ordered by the Court of Appeals.

Relevant here, 7 the Court of Appeals rejected defendant’s argument that the trial court

committed plain error when it permitted Dr. Nazer to testify regarding “medical torture.”

Id. at 7-8. Defendant thereafter sought leave to appeal in this Court, and we ordered oral

argument on the application, directing the parties to address “whether the prosecution’s

medical expert invaded the province of the jury by using the phrase ‘medical torture’ to

label her diagnosis of the child complainant.” People v Alexander, ___ Mich ___, ___; 21

NW3d 211, 211 (2025).

II. STANDARD OF REVIEW

“A trial court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion.” People v Thorpe, 504 Mich 230, 251; 934 NW2d 693 (2019). Where the

court’s decision involves a preliminary question of law, that question is reviewed de novo.

People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). However, because defense

counsel did not object to Dr. Nazer’s use of the term “medical torture,” this issue is

unpreserved and reviewed only for plain error. People v Bynum, 496 Mich 610, 623; 852

NW2d 570 (2014).

III. RELEVANT PRINCIPLES OF EXPERT TESTIMONY ADMISSIBILITY

Under MRE 702(a), an expert may testify in the form of an opinion or otherwise if

their “scientific, technical, or other specialized knowledge will help the trier of fact to

The panel also rejected defendant’s arguments that there was insufficient evidence to sustain her torture conviction, that Dr. Nazer’s testimony violated MRE 703, and that trial counsel rendered ineffective assistance of counsel. We did not order argument on these issues.

understand the evidence or to determine a fact in issue[.]” 8 Helpfulness is a “threshold”

inquiry under MRE 702. People v Kowalski, 492 Mich 106, 121; 821 NW2d 14 (2012)

(opinion by MARY BETH KELLY, J.). Expert testimony is only helpful and thus admissible

if it “involve[s] a matter that is beyond the common understanding of the average juror.”

Id. Likewise, testimony that lacks a reliable foundation is also unhelpful to the jury. Id.

Notably, “[a]n opinion is not objectionable just because it embraces an ultimate

issue” to be decided by the trier of fact. MRE 704; see also Downie v Kent Prod, Inc, 420

Mich 197, 205; 362 NW2d 605 (1984) (explaining that when a proper foundation is laid,

opinion evidence “may even embrace ultimate issues of fact”) (quotation marks and

citation omitted). That said, ultimate-issue testimony must otherwise pass muster under

the rules of evidence. People v Smith, 425 Mich 98, 106-107; 387 NW2d 814 (1986).

Moreover, an expert may not give an opinion as to a defendant’s guilt or innocence, People

v Robinson, 417 Mich 231, 234-235; 331 NW2d 226 (1983), or vouch for a witness’s

credibility, see Thorpe, 504 Mich at 235. When an expert oversteps these bounds, the

testimony may be properly viewed as invading the province of the jury. See People v

Young, 472 Mich 130, 143; 693 NW2d 801 (2005).

MRE 702 has been amended twice since the conclusion of defendant’s trial. See MRE 702, as amended September 20, 2023, 512 Mich ___ (2023); MRE 702, as amended

March 27, 2024, 513 Mich ___ (2024). At the time of defendant’s trial, MRE 702

provided: “If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion . . . .” MRE 702, as amended July 22, 2003, 469 Mich cxci (2004) (emphasis added). We detect no meaningful difference between the word “assist” in the earlier version of the rule and the word “help” in the current version of the rule.

Finally, when it comes to expert testimony, “[o]ften, relevant evidence may be far

too prejudicial to present to a jury in its crudest form.” People v Peterson, 450 Mich 349,

374-375; 537 NW2d 857 (1995). “Since experts base their testimony on science, jurors

tend to find the testimony more convincing, and therefore the risk of misleading and

confusing them increases.” Kowalski, 492 Mich at 157-158 (MARKMAN, J., concurring in

part and dissenting in part) (quotation marks and citation omitted).

IV. RELEVANT CASELAW: PEOPLE v MCFARLANE

The Court of Appeals resolved this case via comparison to its earlier decision in

People v McFarlane, 325 Mich App 507; 926 NW2d 339 (2018). See Alexander, ___

Mich App at ___; slip op at 6-8. Therefore, a summary of that decision, in addition to the

above-described principles, is appropriate before turning to our analysis.

In McFarlane, 325 Mich App at 512, 515, the defendant was charged with firstdegree child abuse, MCL 750.136b(2), after his infant daughter suffered serious injuries,

including subdural bleeding, retinal hemorrhages, and subdural hematoma. The

prosecution presented expert testimony from a child abuse pediatrician, who diagnosed the

child with “definite pediatric physical abuse.” Id. at 517 (quotation marks omitted). The

defendant argued that the trial court erred when it admitted the testimony because it

amounted to an opinion that he was guilty of the charged crime. Id.

The Court of Appeals agreed. See id. at 523-525. The panel explained that “a

physician may properly offer an opinion that, when the medical evidence is considered

along with the child’s history, the child’s injuries were inflicted rather than caused by

accident or disease . . . .” Id. at 522. According to the panel, opining that an injury was

inflicted rather than accidental does not “invade the province of the jury” in determining

guilt and innocence, because the jury is free to reject the expert’s opinion. Id. at 523.

However, in a case that involves allegations of abuse, an expert “goes too far” when she

makes a diagnosis like “abusive head trauma.” Id. (quotation marks omitted). This is

because the ordinary understanding of abuse “implies a level of willfulness and moral

culpability that implicates the defendant’s intent or knowledge . . . .” Id. This runs afoul

of the principle that “[a]n expert may not offer an opinion on the intent or criminal

responsibility of the accused.” Id. Applied to the facts of that case, the Court of Appeals

concluded that the trial court committed error when it allowed the expert “to use the phrase

‘abusive head trauma’ to label her diagnosis rather than a less prejudicial label” and when

it allowed her to agree that the child’s “injuries amounted to ‘child abuse.’ ” Id. at 524-525.

V. COURT OF APPEALS

In this case, defendant was charged with “torture” in violation of MCL 750.85. A

person is guilty of torture if they (1) act with “the intent to cause cruel or extreme physical

or mental pain and suffering” and (2) “inflict[] great bodily injury or severe mental pain or

suffering upon another person within [their] custody or physical control . . . .” MCL

750.85(1). Defendant argues on appeal that it was plain error for the trial court to admit

expert testimony diagnosing MA with medical torture.

The Court of Appeals concluded that the testimony at issue was not improper like

the testimony in McFarlane because Dr. Nazer’s use of the term medical torture “did not

have the potential to conflate [her] medical diagnosis with a legal conclusion concerning

defendant’s legal responsibility.” Alexander, ___ Mich App at ___; slip op at 7. The panel

reasoned that “[d]uring her trial testimony, Dr. Nazer . . . shared that she made a medical,

not legal, diagnosis of ‘medical torture’ after having the opportunity to review the minor

child’s medical records, conduct a physical examination, and interview MA.” Id. In

addition, the panel concluded that Dr. Nazer’s diagnosis of medical torture “did not suggest

that defendant acted knowingly or intentionally,” nor did her testimony “address any

element of the crime charged.” Id. at ___; slip op at 8. The medical torture diagnosis was

tied to Dr. Nazer’s finding of at least two instances of physical harm and two instances of

psychological harm, but that did not “suggest any amount of intentionality.” Id. The panel

also noted that the prosecution “did not advance that the jury should rely on Dr. Nazer’s

testimony in its determination of whether defendant possessed the requisite intent to

establish torture.” Id. The Court of Appeals concluded finally that, even if the admission

of the testimony was improper, the error did not entitle defendant to relief. Id. at ___; slip

op at 8-9.

VI. ANALYSIS

We conclude that Dr. Nazer’s expert testimony concerning the diagnosis of medical

torture was improper in this case. The diagnostic testimony did not help the jury understand

a fact in issue, lacked a reliable foundation, and invaded the province of the jury.

A. HELPFULNESS

One threshold issue in the realm of expert testimony is whether the testimony will

help the jury determine a fact in issue. MRE 702; Kowalski, 492 Mich at 121 (opinion by

MARY BETH KELLY, J.). An expert’s medical opinion might be helpful, in some cases, to

explain a particular injury or the mechanism of a particular injury. For example, in

McFarlane, expert testimony was needed because “it was beyond the ken of ordinary

persons to evaluate the medical evidence and assess the nature and extent of [the

complainant]’s injuries, the timing of those injuries, and the possible mechanisms of injury

implicated by the medical evidence.” McFarlane, 325 Mich App at 518. Similarly, in this

case, expert medical testimony could help the jury assess the nature, extent, and timing of

MA’s injuries relevant to the issue of whether he suffered “great bodily injury,” which is

an element of the crime of torture. MCL 750.85(1).

We do not believe, however, that Dr. Nazer’s medical torture diagnosis testimony

helped the jury assess MA’s injuries. Dr. Nazer simply explained that the medical torture

diagnosis was appropriate where a child is exposed to “two different physical assaults” and

“two psychological maltreatments.” As for the former, Dr. Nazer’s diagnostic testimony

did not explain the nature, extent, or timing of MA’s physical symptoms in a way that

would help the jury determine whether MA suffered great bodily injury. Compare, for

example, Dr. Maqbool’s helpful testimony in this case, in which she described the linear

scars she observed on MA, the scars’ hyperpigmented appearance, and how she discerned

that the wounds were not fresh, or Dr. Nazer’s later helpful testimony that the linear

scarring was “consistent” with being zip-tied. This comparison shows the difference

between testimony that helps the finder of fact assess an element of the charged crime of

torture, i.e., whether great bodily injury was inflicted, and testimony like the medical

torture diagnosis, which does not. Dr. Nazer’s testimony diagnosing MA with medical

torture was unhelpful and thus inadmissible under MRE 702.

B. RELIABLE FOUNDATION

As to the psychological maltreatment component of the medical torture diagnosis,

Dr. Nazer’s testimony supporting her opinion that MA was subject to psychological

maltreatment was also unhelpful to the jury but for a different reason—it lacked a reliable

foundation. See Kowalski, 492 Mich at 121 (opinion by MARY BETH KELLY, J.). Where

an opinion is “based solely on what the victim” relays to a doctor, “[i]n the absence of any

evidence qualifying [the doctor] as an expert in assessing credibility, [the] opinion lack[s]

a reliable foundation.” Smith, 425 Mich at 109. “[A]n examining physician cannot give

an opinion on whether a complainant had been . . . assaulted if the ‘conclusion [is] nothing

more than the doctor’s opinion that the victim had told the truth.’ ” Thorpe, 504 Mich at

262 (citation omitted; second alteration in Thorpe). Our review of the record demonstrates

that the psychological maltreatment component of the medical torture diagnosis was based

on little more than Dr. Nazer’s crediting MA’s account of events, which was disclosed to

Dr. Nazer and to others. 9

We therefore conclude that Dr. Nazer’s testimony diagnosing MA with medical

torture was also unreliable and thus inadmissible under MRE 702.

C. INVADING THE PROVINCE OF THE JURY

We further disagree with the Court of Appeals’ conclusion that the medical torture

testimony did not run afoul of the principles laid out in McFarlane, 325 Mich App 507.

Like McFarlane, this case involves the admissibility of accepted medical terminology that

Dr. Nazer explained: “[W]e are not physically there in the children’s home in order to— to witness that [i.e., psychological maltreatment]. That’s why in the Child Advocacy Center . . . we rely [on] forensic interviewers, we’re relying on other information . . . .”

may be misconstrued by laypersons as imparting emotionally charged or legally conclusory

connotations. The Court of Appeals concluded that Dr. Nazer’s diagnostic testimony using

the term medical torture lacked the “potential to conflate Dr. Nazer’s medical diagnosis

with a legal conclusion concerning defendant’s legal responsibility,” and that the testimony

“did not suggest that defendant acted knowingly or intentionally.” Alexander, ___ Mich

App at ___; slip op at 8. In our opinion, however, the same concerns that arise when a

child abuse pediatrician diagnoses a child with “abusive head trauma” in an abuse case,

McFarlane, 325 Mich App at 523 (quotation marks omitted), are present when a child

abuse pediatrician opines that she has diagnosed the child with “medical torture” in a

torture case.

An expert witness “cannot express an opinion on the defendant’s guilt or innocence

of the charged offense.” People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013);

see also People v Drossart, 99 Mich App 66, 79-80; 297 NW2d 863 (1980); People v

Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975). Whether a defendant is guilty or

innocent is tantamount to a legal conclusion. And it is “important that the expert witness

not be permitted to testify about the requirements of law which apply to the particular facts

in the case or to phrase his opinion in terms of a legal conclusion.” Drossart, 99 Mich App

at 75. So, although MRE 704 would generally not prohibit testimony about an ultimate

issue (here, intent), 10 such testimony would not be “otherwise admissible” pursuant to this

long-standing maxim.

Unlike the federal rule of evidence, FRE 704(b), which prohibits an expert witness in a criminal case from stating an opinion about a defendant’s mental state, MRE 704 does not contain such an exception. That said, such testimony must still be “otherwise admissible” and comply with all of the other rules of evidence, meaning, for example, that it must be

Like the Court of Appeals in McFarlane, we conclude that the expert testimony

diagnosing MA with medical torture “comes too close to findings that are left exclusively

to the jury.” McFarlane, 325 Mich App at 521 (quotation marks and citation omitted).

The lay meaning of “torture” would be generally understood as “the infliction of intense

pain . . . to punish, coerce, or afford sadistic pleasure.” Merriam-Webster’s Collegiate

Dictionary (11th ed). This definition maps closely to the intent element of the crime of

torture: the defendant intended “to cause cruel or extreme physical or mental pain and

suffering.” MCL 750.85(1). That Dr. Nazer diagnosed MA with medical torture, therefore,

likely impressed upon the jury an opinion on defendant’s criminal responsibility for the

crime for which she was on trial—torture. And, unlike a medical opinion encompassing

whether an injury was caused non-accidentally or by human agency, the term “torture,”

like the term “abuse,” “implies a level of willfulness and moral culpability.” McFarlane,

325 Mich App at 523.

Unlike the panel below, we are not swayed by the fact that Dr. Nazer’s diagnostic

testimony was a “medical” diagnosis and not a legal one. The same was, of course, true in

McFarlane, 325 Mich App at 517 (quotation marks omitted), where the diagnosis of

“definite pediatric physical abuse” was also a medical diagnosis. More importantly,

relevant, reliable, based on an adequate foundation, and helpful to the trier of fact, and it must present sufficient probative force to overcome any unfair prejudice. See, e.g., People v Sharpe, 502 Mich 313, 331; 918 NW2d 504 (2018) (analyzing whether evidence that was not excluded by the rape-shield statute was “otherwise admissible” under other rules of evidence, such as MRE 401, MRE 402, and MRE 403). Strict compliance with these

concepts of admissibility becomes particularly important in the realm of expert testimony. See Thorpe, 504 Mich at 230 (“[A]n expert will often represent the only seemingly objective source, offering [the jury] a much sought-after hook on which to hang its hat.”) (quotation marks and citation omitted).

regardless of the label given, the diagnostic terminology clearly posed a danger of

confusing the doctor’s medical diagnosis with the legal determination. See People v

McFarlane, 505 Mich 1059, 1062 (2020) (CAVANAGH, J., concurring) (“The terminology

at issue here has the potential to confuse medical diagnosis with legal determination . . . .”).

As discussed, this testimony was unhelpful, lacked a reliable foundation, and invaded the

province of the jury in its duty to determine defendant’s guilt. In other words, the testimony

had marginal probative value and the substantial risk of prejudice. See People v Beckley,

434 Mich 691, 724; 456 NW2d 391 (1990) (opinion by BRICKLEY, J.) (“As reliability

diminishes, the prejudicial effect of the evidence increases.”). The danger that the jury will

be misled when looking to an expert’s opinion for “a much sought-after hook on which to

hang its hat” cannot be overstated. Peterson, 450 Mich at 374 (quotation marks, citation,

and emphasis omitted). In sum, the risk that the jury might improperly confuse a medical

torture diagnosis with an expert opinion that defendant was guilty of torture by deferring

to the expert’s unhelpful and unreliable opinion renders the medical torture diagnosis

testimony improper.

VII. PLAIN ERROR

Although we conclude that the medical torture diagnosis testimony was improper in

this case, because the issue is unpreserved, we must consider whether defendant is entitled

to relief under the plain-error standard of review. To be granted relief under the plain-error

standard, a defendant must show that (1) an error occurred; (2) the error was clear or

obvious; and (3) the error affected substantial rights, which generally means that it affected

the outcome of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130

(1999). Once the defendant has made such a showing, reversal is warranted only when the

plain, forfeited error resulted in the conviction of an actually innocent defendant or

seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id.

First, as discussed, we conclude that defendant has established that the medical

torture testimony was improper. We question, however, whether admission of the

testimony was a “clear or obvious” error. People v Randolph, 502 Mich 1, 10; 917 NW2d

249 (2018) (quotation marks and citation omitted). Although, for example, McFarlane

also considered the issue of problematic medical diagnostic testimony, McFarlane dealt

with different terminology, diagnoses, and criminal charges and thus was not necessarily

binding on the issue in this case. See Randolph, 502 Mich at 10 (providing that an error is

not “clear or obvious” if it is “subject to reasonable dispute”) (quotation marks and citation

omitted). However, even assuming that the error was plain, we conclude that defendant’s

claim fails on the question of whether the error affected her substantial rights. That is, in

light of the strength of the remaining evidence, we cannot conclude that the error affected

the outcome of the lower court proceedings. Id.

Even without Dr. Nazer’s problematic testimony concerning medical torture, other

compelling evidence remained in this case. Dr. Nazer, for example, appropriately testified

that six weeks after MA was removed from defendant’s care, circumferential scarring

remained around both his wrists and ankles. She confirmed that the scarring was consistent

with ligature marks and with being tied with zip ties. This testimony concerning MA’s

injuries was not tainted by the problematic medical torture diagnosis. Another expert, the

emergency room physician, Dr. Maqbool, also offered untainted medical testimony about

the ligature marks, as did a responding police officer and an EMT.

Additional evidence further cuts against the finding of prejudice. Both MA and RS

testified that MA had been zip-tied. Most significantly, defendant herself admitted to

police that she had tied MA’s wrists on more than one occasion and had instructed Scott to

tie up MA. The jurors watched defendant’s interview and heard her admit to tying up MA

instead of keeping watch over him, and they heard her blame the ligature marks and scars

on MA’s attempt to escape the restraints. Other evidence of defendant’s attitude toward

and treatment of MA shed additional light on defendant’s intent and her treatment of the

child, including that defendant told MA’s godmother she “was tired of him” and wanted to

“give him away,” that MA was made to sleep on the floor in the trailer, and that he was not

regularly fed. Taken together, the evidence strongly supported that defendant intended to

cause MA cruel or extreme physical or mental pain and suffering and that she inflicted

great bodily injury. MCL 750.85(1).

It is also relevant that Dr. Nazer admitted during cross-examination that she could

only testify about medical definitions, not legal definitions. The prosecutor emphasized

this admission during closing argument when she stated, “[Y]ou heard from Dr. Nazer,

who . . . diagnosed [MA] and [RS] as having medical torture, which is . . . different than

legal torture.” 11 And the jury was provided an instruction indicating that it was free to

The Court of Appeals cited this closing argument as a reason why the testimony was not erroneous. See Alexander, ___ Mich App at ___; slip op at 8 (“[W]hile the prosecution noted in its closing argument that Dr. Nazer had characterized the symptoms as having been caused by abuse, the prosecution did not advance that the jury should rely on Dr. Nazer’s testimony in its determination of whether defendant possessed the requisite intent to establish torture.”). We disagree that the prosecutor’s subsequent use (or nonuse) of improper testimony would impact whether the testimony was erroneously introduced in the first place. However, this is certainly relevant to whether defendant can demonstrate prejudice.

accept or reject witness testimony. See People v Davis, 509 Mich 52, 78; 983 NW2d 325

(2022) (noting that jurors are presumed to follow their instructions). In light of the strong

evidence properly admitted, we conclude that defendant has not established that the

asserted error affected the outcome of the proceedings.

VIII. CONCLUSION

Although we hold that the expert testimony concerning medical torture in this case

was unhelpful to the jury, lacked a reliable foundation, and invaded the province of the

jury, we nonetheless are unpersuaded that the testimony affected the outcome of the trial.

We, therefore, affirm the judgment of the Court of Appeals.

Megan K. Cavanagh

Brian K. Zahra

Richard H. Bernstein

Elizabeth M. Welch

Kyra H. Bolden

Kimberly A. Thomas

Noah P. Hood

People v Alexander

Authorities cited

Opinion · public domain