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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v JAMES SCHNEIDER, Defendant-Appellee.

UNPUBLISHED April 24, 2007

No. 273421 Wayne Circuit Court LC No. 05-009901

Before: Owens, P.J., and Neff and White, JJ. PER CURIAM. Defendant is charged with four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a) and MCL 750.520b(1)(b), and two counts of third-degree criminal sexual conduct, MCL 750.520d(1)(d). After a March 20, 2006, pretrial hearing, the trial court granted defendant's motion to admit Dr. Michael Abramsky's expert testimony regarding patterns and behavior of child molesters. The prosecution appeals by leave granted.1 We reverse and remand. I The prosecution argues that the trial court abused its discretion by not performing its gatekeeping function under MRE 702 and, further, that the proposed expert testimony regarding a profile of a child molester is inadmissible junk science. After the trial court's ruling in this case, and after the briefs in this appeal were filed, this Court issued a decision directly addressing the admissibility of expert testimony on characteristics of a sex offender, People v Dobek, ___ Mich App ___; ___ NW2d ___ (Docket No. 264366, issued January 30, 2007). The expert testimony proffered in this case is analogous to the testimony found to be inadmissible in Dobek. Because the reasoning and decision in Dobek is dispositive, we conclude that the trial court abused its discretion in ruling that the expert testimony was admissible.

The prosecution's application for leave to this Court was initially denied. The prosecution then filed an application for leave to the Supreme Court and, in lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted.

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A This Court reviews a trial court's determination regarding the admissibility of expert testimony for an abuse of discretion. Dobek, supra, slip op at 18; People v Ackerman, 257 Mich App 434, 442-443; 669 NW2d 818 (2003). However, if the question of admissibility involves an examination of the meaning of the Michigan Rules of Evidence, an issue of law is presented, which we review de novo. Id. at 442. "A trial court necessarily abuses its discretion when the court permits the introduction of evidence that is inadmissible as a matter of law." Dobek, supra, slip op at 18. Expert testimony is admissible under MRE 702 if the trial court determines that it is from a recognized discipline, it will aid the trier of fact in understanding evidence or determine a fact in issue, and the witness is deemed qualified. People v Peterson, 450 Mich 349, 362; 537 NW2d 857, mod 450 Mich 1212 (1995); Ackerman, supra at 444. The admission of expert testimony is governed by MRE 702, which provides: 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 by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The party offering the expert testimony has the burden of establishing its admissibility. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 781; 685 NW2d 391 (2004). However, "[t]he trial court has an obligation under MRE 702 "to ensure that any expert testimony admitted at trial is reliable.'" Dobek, supra, slip op at 19, quoting Gilbert, supra at 780. "While the exercise of the gatekeeper function is within a court's discretion, the court may neither abandon this obligation nor perform the function inadequately." Dobek, supra, slip op at 19. Junk science must be excluded. Id. "MRE 702 mandates a searching inquiry, not just of the data underlying expert testimony, but also of the manner in which the expert interprets and extrapolates from those data. Thus, it is insufficient for the proponent of expert opinion merely to show that the opinion rests on data viewed as legitimate in the context of a particular area of expertise (such as medicine). The proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology." [Dobek, supra, slip op at 19, quoting Gilbert, supra at 782.] B In Dobek, the defendant sought reversal of his CSC convictions following a jury trial, in which the court excluded testimony from the defendant's expert, Dr. Andrew Barclay, a retired professor of psychology and a licensed psychologist. Barclay would have testified that the defendant did not exhibit characteristics or fit the profile of a typical sex offender according to psychological testing and interviews. Dobek, supra, slip op at 18. His testimony and -2-


conclusions were based in part on psychological tests given to defendant: the Millon Clinical Multiaxial Inventory

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