Petitioners Brief — Michigan v. Lucas
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IN THE SUPREME COURT OF THE
NO. 90-149
OCTOBER TERM, 1990
THE PEOPLE OF THE STATE OF MICHIGAN
PETITIONER
ON WRIT OF CERTIORARI
TO THE MICHIGAN COURT OF APPEALS
BRIEF FOR PETITIONER
JOHN D. O'HAIR
Prosecuting Attorney
County of Wayne
TIMOTHY A. BAUGHMAN*
Chief of Research,
Training and Appeals
DON W. ATKINS*
Principal Attorney, Appeals
12th Floor, 1441 St. Antoine
Detroit, Michigan 48226
Phone: (313) 224-5794
*Counsel of Record
ag
ete
_
TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES... .eeeeeeeeeeeeeill
STATEMENT OF THE QUESTION.......... coool
OPINIONS AND ORDERS BELOW....--eeeeeeeeed
STATEMENT OF JURISDICTION.......0e00042
CONSTITUTIONAL PROVISIONS INVOLVED.....3
STATUTORY PROVISION INVOLVED......+++++4
STATEMENT OF THE CASE... .eeeeseeeeeveeedS
SUMMARY OF ARGUMENT... -eeeeeeeeseevee2dd
ARGUMENT
NEITHER THE CONFRONTATION CLAUSE
OF THE SIXTH AMENDMENT NOR THE
RIGHT TO PRESENT A DEFENSE ARE
VIOLATED BY THE EXCLUSION OF
ARGUABLY RELEVANT EVIDENCE TO BE
USED ON CROSS-EXAMINATION OR IN
CONTRADICTION OF A SEXUAL AS-
SAULT VICTIM FOR FAILURE TO FILE
A REQUIRED NOTICE OF INTENT TO
EMPLOY SUCH EVIDENCE (THEREBY
OBTAINING A PRETRIAL HEARING ON
ITS ADMISSIBILITY/LEGAL RELE-
VARCBR) coccccccccccccccccecccccceee ae
I. THE RIGHT TO CONFRONTATION.....26
II. RAPE SHIELD LAWS AND NOTICE
of >) rT Tee ee ee
A. PROCEDURAL PREREQUESITES TO
ADMISSION OF SEXUAL HISTORY
PP errr re a er ee eee
@ 44 «
TABLE OF CONTENTS
PAGE
1. RELEVANCE AND NECESSITY
(RELATIONSHIP OF PROPOSED
EVIDENCE TO THE DEFENSE
ASSERTED) ..cccccccccccsecseee 40
2. PURPOSE OF NOTICE
PROVISIONS .ccccccccccccccec4B
B. FAILURE TO FILE TIMELY NOTICE
AND PRECLUSION OF EVIDENCE...59
III. THE INSTANT CASE. seereeneeneeeeeee ~70
A . REQUIRING NOTICE eee eeeneeeeneee 7 3
B. TESTING RELEVANCE......++++++79
C. SHOWING PREJUDICE OR LACK OF
"HARMLESS Bee” coccecccecoeconn
it: PPPPPYTTTTITTTTT Th”,
- iii -
INDEX OF AUTHORITIES
CASES PAGE
California v Green,
399 U.S. 149, 157,
90 s.Cct. 1930, 1934 (1970) ccccccceccs
Chambers v Mississippi,
410 U.S. 284,
93 S.Ct. 1038 (1973) wc. cee e ene eenvees
Davis v Alaska,
415 U.S. 308, 315-16,
94 S.Ct. 1105, 1110 (1974) cee eeeees
Delaware v Fensterer,
474 U.S. 15, 106 S.Ct. 292 (1985)...
Delaware v Van Arsdall,
475 U.S. 673, 106 S.Ct. 1431 (1986).
Harris v State,
362 S.E.2d 211, 213 (Ga. 1987)..32,
Munn v State,
505 N.E.2d 782, 785 (Ind. 1987).....
Nix v Whiteside,
475 U.S. 157, 173,
27
26
28
27
53
43
106 S.Ct. 988, 997 (1986)..7........58
Olden v Kentucky,
488 U.S. , 109 S.Ct. 480 (1988)..29
People v Arenda,
330 N.W.2d 814 (Mich. 1982)......... 37
People v Hackett,
365 N.W.2d 120,
124 (Mich. 1984) wc cece eee ennnn ne 2B, 36
People v Hearn,
300 N.W.2d 396,
398 (Mich.App. 1980)........eeeeeees 66
- iv =-
INDEX OF AUTHORITIES
CASES PAGE
People v Khan,
264 N.W.2d 360
(Mich.App. 297B) ccccccccccce dd, 56, 65
People v LaLone,
437 N.W.2d 611 (Mich. 1989).....34, 85
People v Lucas,
408 N.W.2d 431
(Mich. 1987) wccccccccccscscceee ed, 82
People v McKenna,
585 P.2d 275 (Colo. 1978)...37, 69, 80
People v Perkins,
379 N.W.2d 390, 391
(Mich. BBG6) cccccccccccccccccce cS, 78
People v Slovinski,
420 N.W.2d 145, 150
(Mich.App. TTT T TTT Tre
People v Smith,
340 N.W.2d 855, 856-857
(Mich.App. 1983) wccccccceeee 43, 68, 87
People v Williams,
289 N.W.2d 863 (Mich.App. 1980).54, 81
People v Williams,
330 N.W.2d 823 (Mich. 1982).47, 51, 71
People v Zysk,
386 N.W.2d 213, 217
Gece BOOS) cc ccccccccececececes 47
State v Acre,
451 N.E.2d 802, 805 (Ohio 1983)..... 69
State v Daniels,
512 A.2d 936, 938 (Conn.App. 1986)..83
i
CASES PAGE
State v Hamilton,
289 N.W.2d 470 (Minn. 1979)..... 37, 86
State v Hopkins,
377 N.W.2d 110 (Neb. 1985)......45, 81
State v Howard,
426 A.2d 457 (N.H. 1981)... 2e 200004437
State v Larson,
389 N.W.2d 872 (Minn. 1986).....68, 86
State v Oglivie,
310 N.W.2d 192, 195 (Iowa 1981).....68
State v Piper,
261 N.W.2d 650, 655 (N.D. 1978)..... 68
State v Risdal,
404 N.W.2d 130, 132 (Iowa 1987).....68
State v Salkil,
659 S.W.2d 330, 334 (Mo.App. 1983)..69
State v Sanders,
610 P.2d 633, 636 (Kan. 1980).......68
State v Stellwagen,
659 P.2d 167, 168, 170 (Kan. 1983)..47
State v Williams,
580 P.2d 1341,
1342-1343 (Kan. 1978)...........-68, 69
State v Williams,
681 P.2d 660, 664 (Kan. 1984)...47, 69
- Veo
INDEX OF AUTHORITIES
Taylor v Illinois,
484
108
U.S. 400,
«Sy ere reer T 62
- vi-
INDEX OF AUTHORITIES
CASES PAGE
United States v Duran,
886 F.2d 167,
168 n. 4, 169 (8th Cir. 1989)....... 69
United States v Nixon,
418 U.S. 683, 713,
94 S.Ct. 3090, 3110 (1974)..........42
United States v Nobles,
422 U.S. 225, 95 S.Ct. 2160 (1975)..60
United States v Provost,
875 F.2d 172, 177 (8th Cir. 1989)...69
Wardius v Oregon,
412 U.S. 470, 93 S.Ct. 2208 (1973)..60
Williams v Florida,
399 U.S. 78, 90 S.Ct. 1893 (1970)...49
Wright v State,
513 A.2d 1310,
1313 (Del.Supr. 1986).......51, 69, 80
STATUTES AND COURT RULES
Ark. Code Ann., s. 16-42-1011
(C) (2) (A) cccccccccccccccccess eeeecee es 38
Colo. Rev. Stat., s. 18-3-407(2) (a)...38
Fed. R. Evid. 412(C)(1)..ccccccccccecs 38
Ind. Code Ann., 8. 35-37-4-4(c)(1)....38
Kan. Stat. Ann. s., 21-3525(2)....38, 39
Ky.Rev.Stat. Ann., Ss. 510-145(3) (a)...39
- vii -
INDEX OF AUTHORITIES
STATUTES AND COURT RULES
M.C.L.A. 750.5203;
M.S.A. S@C. 28.788(10)....cececseeees 34
M.C.L.A. 750.5203 (2);
M.S.A. 28.788(10)(2).38, 39, 71, 75, 83
M.C.L.A. ye Bvt to E
M.S.A. 28.788(10) (1) .-eeeeeececes 40, 43
Neb. Rev. Stat., S. 28-321(1).........38
Ohio Rev. Code Ann. s. 2907.02(E)..... 38
Ore. Evid. Code. Rule 412(3) (a)....... 38
Wyo. Stat. Ann., &. 6-2-312(a)...++5+-. 38
OTHER AUTHORITIES
Comment, “The Rape Shield Paradox:
Complainant Protection Amidst
Oscillati Trends of State Judicial
Interpretation", 78 J.Crim.Lé&
Criminology 644 (1987) .....esseeeees 36
Note, "If She Consented Once, She
Consented Again - A Legal Fallacy in
Forcible Rape Cases", 10 Val.U.L.Rev.
127, 164 (1976) wcccccccccsesccseseeedds
2 Weinstein & Berger, Evidence,
s. 412[01], pp. 412-10......33, 38, 51
STATEMENT OF THE QUESTION
ARE EITHER THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT OR
THE RIGHT TO PRESENT A DEFENSE
VIOLATED BY THE EXCLUSION OF
ARGUABLY RELEVANT EVIDENCE TO BE
USED ON CROSS-EXAMINATION OR IN
CONTRADICTION OF A SEXUAL
ASSAULT VICTIM FOR FAILURE TO
FILE A REQUIRED NOTICE OF INTENT
TO EMPLOY SUCH EVIDENCE (THEREBY
OBTAINING A PRETRIAL HEARING ON
ITS ADMISSIBILITY/LEGAL
RELEVANCE) ?
OPINIONS AND ORDERS BELOW
The April 23, 1987 opinion of the
Michigan Court of Appeals is reported at
160 Mich.App. 692; 408 N.W.2d 431 (1987)
and is appended as Appendix A in the
Petition for Certiorari (pp. la-7a). The
September 27, 1989 order of the Michigan
Supreme Court is reported at 433 Mich.
878; 446 N.W.2d 291 (1989) and is append-
ed as Appendix B in the Petition for
Certiorari (pp. 8a-9a). The March 7,
1990 opinion of the Michigan Court of
Appeals (on remand) is unreported and is
appended as Appendix C in the Petition
for Certiorari (pp. l0a-l2a). The June
S, 1990 order of the Michigan Supreme
Court denying leave to appeal is reported
at 434 Mich. 925; _— N.W.2a@ (1990)
and is appended as Appendix D in the
Petition for Certiorari (p. 13a).
STATEMENT OF JURISDICTION
The judgment of the Michigan Court
of Appeals was entered on April 23, 1987. ¢
The Michigan Supreme Court remanded the
cause to the Michigan Court of Appeals by
order dated September 27, 1989. The
judgment of the Michigan Court of Appeals
(On Remand) was entered on March 7, 1990.
The Michigan Supreme Court entered judg-
ment denying leave to appeal on June 5,
1990. The jurisdiction of this Court is
invoked under 28 U.S.C., Ss. 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment to the United
States Constitution provides, in perti-
nent part, that in all criminal prosecu-
tions the accused shall have the right
"to be confronted with the witnesses
against him."
The Fourteenth Amendment to the
United States Constitution provides, in
pertinent part, that no person shall be
deprived of liberty without "due process
of law."
- 4-=
STATUTORY PROVISION INVOLVED
Mich.Comp.L.Ann. Sec. 750.5204;
Mich.Stat.Ann. Sec. 28.788(10) provides:
(1) Evidence of specific
instances of the victim's sexual
conduct, opinion evidence of the
victim's sexual conduct, and
reputation evidence of the vic-
tim's sexual conduct shall not
be admitted under sections 520b
to 520g unless and only to the
extent that the judge finds that
the following proposed evidence
is material to a fact at issue
in the case and that its inflan-
matory or prejudicial nature
does not outweigh its probative
value: ‘
(a) Evidence of the victim's
past sexual conduct with the
actor.
(b) Evidence of specific
instances of sexual activity
showing the source or origin of
semen, pregnancy, or disease.
(2) If the defendant pro-
poses to offer evidence de-
scribed in subsection (2) (a) or
(b), the defendant within 10
days after the arraignment on
the information shall file a
written motion and offer proof.
The court may order an in camera
hearing to determine whether the
proposed evidence is admissible
under subsection (1). If new
information is discovered during
the course of the trial that may
make the evidence described in
subsection (1)(a) or (b) admis-
sible, the judge may order an in
camera hearing to determine
whether the proposed evidence is
admissitle under subsection (1).
The Respondent, Nolan K. Lucas, was
charged with two counts of criminal sexu-
al conduct in the first-degree which were
alleged to have occurred on August 31,
1984.
On September 14, 1984, Lucas secured
the services of retained counsel (J. A.
2). On September 18, 1984, a preliminary
examination was held in the Thirtieth
District Court. The complainant, Wanda
Brown, testified that for a period of
approximately six to seven months before
the date of the offense she and Lucas had
been "dating". They had a boyfriend-
girlfriend relationship [R. (Prel.Exan.)
4). On cross-examination, Brown stated
that she and Lucas had had sexual inter-
course over one hundred times "(b)oth
conventional, straight penal-vaginal sex,
as well as oral sex, at different times"
(R. (Prel. Exam.) 23]. She repeated the
fact that a boyfriend-girlfriend rela-
-6-
tionship had existed and that they had
talked of marriage [R. (Prel.Exam.) 24].
Brown denied that she was using the crim-
inal justice system "to get revenge" (R.
(Prel.Exam.) 35) or that she was jealous
or that she had "fabricate(d) this story
to punish him" [R. (Prel.Exam.) 41).
The Respondent testified that their
relationship included repeated acts of
sexual intercourse [R. (Prel.Exam.) 59}.
As to the events of August 31, 1984, he
stated that their was no coercion and
that they had a voluntary consensual
sexual encounter "the same way it had
been just about every night before then,
freely" [R. (Prel.Exam.) 62].
At the conclusion of the hearing,
the Respondent was bound over for trial
in circuit court on the charges contained
in the complaint [R. (Prel.Exam.) 76].
On October 25, 1984, Mr. Lucas was
arraigned on the information. (J. A. 2).
On November 14, 1984, a motion to
adjourn the trial for the purpose of con-
ducting a polygraph examination, filed by
the Respondent's retained attorney, was
granted by the circuit court (J. A. 2).
On February 8, 1985, the trial date
was again adjourned as the result of the
entry of a substitution of counsel. On
that date, newly-appointed counsel (Gayle
Fort Williams) entered her appearance (J.
A. 2).
On the opening day of trial, defense
counsel made an oral motion to admit evi-
dence of past sexual conduct between the
Lucas and the complainant. Due to the
Respondent's failure to comply with the
notice requirement of MCL 750.520)(2);
MSA 28.788(10)(2), the motion was denied
(R. 3-6). Defense counsel did not
request a continuance. Instead, the
Respondent waived his right to be tried
by a jury (R. 6-8). The matter was then
heard by the Honorable Charles Farmer,
Judge of the Wayne County Circuit Court,
on May 14-15, 1985.
The complainant testified that she
had known the Respondent (who was known
to her as "Chris") for six or seven
months a "boyfriend-girlfriend relation-
ship had existed (R. 10-13). About two
weeks before the date of the offense, the
relationship was terminated (R. 11-12).
On the night of August 31, 1984 at
about 10:15 p.m., Brown was walking to a
corner gas station to buy cigarettes when
the Respondent came out of his house and
"abducted" her (R. 14). He grabbed her
by the arm and held a knife in his hand
(R. 15). While still armed with the
knife, he took her into the dining room
of his house and ordered her to remove
all her clothing. Brown stated that this
was against her will (R. 17, 20). She
was then taken into the living room where
Lucas poured two glasses of wine. She
drank some of the wine in the glass he
gave her (R. 19, 21). At one point, the
Respondent opened a window slightly and
that she heard the voice of a neighbor.
Brown was going to call out but Lucas put
-9-
his hand on her neck, digging his finger-
nails into her flesh, and placed the
knife to her neck (R. 22-23).
Throughout the time that Brown was
with Lucas (about twenty-four hours), he
repeatedly accused her of having had sex
with a man named "Ricky" (R. 24-25, 28,
34, 111).
Brown testified that Lucas hit her
with his closed fist four or five times
in the right eye and then forced her to
engage in an act of fellatio and an act
of vaginal intercourse (R. 26-30, 32).
Her right eye was blackened and she had a
swollen face and bruised head as a result
of being hit by him (R. 27). During the
acts of penetration the knife was placed
on the floor and was about twelve inches
from their heads (R. 33).
About 1:00 a.m. on the following
morning, Lucas struck her in the area of
the right eye about seven more times. He
then put his penis into her vagina. Ms.
Brown testified that the knife was open
- 10 -
and lying on a coffee table at that time
(R. 36-38).
Brown testified that she did not
make any attempt to escape because she
was afraid of him and because he had the
key to the deadbolt lock on the front
door in his pocket (R. 41-42). On cross-
examination, she testified:
"Q. Did you make an attempt to
escape through the windows?
"A. No, I thought about it, but
I didn't do it.
"Q. Why didn't you?
"A. Because I was petrified.
Chris om“ stands about
6 feet tall. He had a knife in
his hand. I am 5 feet even,
about 100 pounds, and if I tried
to escape but didn't escape, I
thought he might t to kill me
$s) hurt me seriously." (R. 79-
Her fear and the security locks on
the house also kept her from trying to
escape during the two or three times that
Lucas went into the cellar for more wine
(R. 80).
In the evening of September 1, at
about 5:00 p.m., the Respondent called .
the complainant's mother and told her
-ll-
that Brown had been injured slightly in a
robbery attempt the night before. Brown
testified that Lucas told her she could
either consent to this story or he would
"... make one phone call and somebody
would have my mother ripped off and my
kid snatched off the street." (R. 45)
Brown testified that after Lucas
called her mother she slept for a while.
When she woke up the Respondent walked
her home. She stated that he had acted
as though nothing had happened the prior
night (R. 104). She testified that at
that time her face was swollen, her head
hurt, and her right eye was bruised (R.
47). When she got home, she did not tell
her family what had happened because she
was afraid, angry, and because her young
son was there and she did not want him to
see her or to know’ what had happened (R.
50).
On September 4, 1984, Brown filed a
complaint with the police, She decided
to go to the police because the day be-
fore the Respondent had repeatedly called
her at work harassing and threatening her
(R. 51). Prior to that time, her fear
that Lucas would carry out his threats
against her family had kept her silent
(R. 51).
Brown testified that the police took
a photograph of her face (R. 48-49). On
cross-examination, she further explained
the reason for the delay in reporting the
incident:
"Q. Why didn't you have a photo
taken on the first, second or
third?
"A. Because I was petrified. I
was scared to death. The only
thing I wanted to do is put as
much distance between him and
myself.
"Q. How did you become unafraid?
"A. When I was sitting at work,
at my typewriter, I kept think-
ing this man has threatened my
life, my mother's and my son's.
There is no man in my home. My
child walks back and forth to
school everyday. I met him
under an alleged name, under
family members that he claims
were aunts and sisters, and all
that was a lie. So I didn't
know what route he would take,
and I really didn't care what he
would really do to me. At that
point I said to myself I
couldn't live like this. I
couldn't work and be worried
- 13-
bout my kid, calling the school
over ay having the principal
go out of his way, meeting my
boy halfway." (R. 112-113).
Brown stated that she believed his
threats against her in part because he
had used the knife to make superficial
cuts on his own wrists. She testified
that he told her he was not afraid to die
while he did this (R. 114). Brown was
examined by her family physician after
talking to the police (R. 52).
On cross-examination, Brown stated
that before her relationship with Lucas
had ended they would see each other every
day (R. 62). She liked him, cared for
him, and was fond of him during the rela-
tionship (R. 66). She explained that he
had harassed her throughout the two weeks
between the time the relationship ended
and the time of the assaults (R. 66-67,
69-70).
Brown denied that she had brought
the charges against him as revenge for
his having broken off their relationship.
- 14 =
She denied having thought that he was
seeing other women during their relation-
ship. She denied using the court to
punish him (R. 109-110, 113).
Dr. Michael Sampson testified that
he examined the complainant on September
4, 1984. He testified that her right eye
was swollen and bruised and that there
were abrasions on the right side of her
neck (R. 91). The doctor was of the
opinion that these injuries were from two
to five days old (R. 94-95). The pelvic
examination which he conducted revealed
no evidence from which to conclude that a
sexual assault had or had not ecourred
(R. 92).
Mary Simmons, Ms. Brown's mother,
testified that her daughter left the
house on the evening of August 31 to buy
Cigarettes (R. 116). She stated that her
daughter did not have any noticeable
injuries on her face or neck at that time
(R. 117). When she next saw her daughter
the following evening, she was bruised
- 15 -
and scratched. Her daughter refused to
talk about what had happened to her (R.
124).
Ms. Simmons stated that Lucas called
her between 4:00 and 6:00 p.m. and told
her that her daughter was resting at his
house. He told her that she had been
attacked the night before (R. 118-121).
She stated that her daughter and the
Respondent had a "“boyfriend-girlfriend"
relationship previously (R. 125).
Karen Barden, a detective with the
Highland Park police force, took a report
from Brown on September 4, 1984 (R. 133-
134). She took a photograph of the
bruises and scratches she saw on the
complainant. Officer Barden testified
that the photograph did not reflect the
severity of the complainant's injuries
(R. 136).
On September 5, 1985, Officer Barden
arrested Lucas at his home. During a
patdown search of the Respondent, she
found the knife that was identified by
- 16 -
the complainant as the one used against
her (R. 138-139).
After issuing "Miranda warnings",
Officer Barden took a statement from the
Respondent (R. 140-145). In his state-
ment, Lucas told the officer that he was
engaging in an act of consensual sex with
the complainant when Brown called him
"Ricky" several times. He said she slap-
ped him and he slapped her back. After
that they continued to have consensual
sex. He said that they planned to tell
Ms. Brown's mother that she had been
robbed because they did not want her to
know that Ms. Brown was pregnant for the
second time. Lucas told Officer Barden
that this was a result of his home having
been bombed by the complainant (R. 146).
Barden testified that she saw no
evidence of burning at the Respondent's
house (R. 147). She testified that she
Saw scratches on his wrists. Her efforts
to take a picture of him failed (R. 152-
155).
- 17 -
The Respondent testified that he
first became acquainted with the com-
plainant during the second week of April,
1984 (R. 163). He testified that they
frequently visited each other, that they
were very close, and that he intended to
marry Ms. Brown (R. 164, 166, 216). He
testified that he asked Brown's mother
for permission to marry her (R. 167).
Lucas testified that he and the
complainant engaged in three or four
separate acts of consensual sexual inter-
course on August 31, 1984 (R. 168). He
engaged in some of those acts after the
complainant called him "Ricky" and after
he had slapped her (R. 226). Lucas
stated that he slapped the complainant
only once with his open hand (R. 205-206,
212, 215). He testified that the photo-
graph of the complainant made her bruises
look much worse than they were (R. 213).
He stated that he saw no injuries on her
neck when she left on September 1 (R.
214).
- 18 -
The Respondent testified that he and
the complainant made up the story about
her having been robbed because of her
mother. He explained that Brown had
previously told him that she was pregnant
with his child. He said that she told
him that night that the baby was another
man's child (R. 207). He said that they
talked about who would be the father to
the child. He told the complainant that
he would not act as the child's father
and that he was going to tell Brown's
mother this (R. 208). He said that at
about 6:00 p.m. he called the complain-
ant's mother and told her that he was not
the father of the child (R. 209-210).
Lucas testified that the knife in
question was Ms. Brown's knife. He had
borrowed it but failed to return it (R.
193-194). He also testified that the
scratches on his wrists were made by a
kitten (R. 197).
The Respondent stated that there
were no locks and keys for the windows
- 19 -
(R. 170, 177-178); that there are no
security bars on his home (R. 174-175);
that the key to the deadbolt lock on the
door is always left hanging on a string
next to the door (R. 221-222); and, that
the gate to the patio is left unlocked
(R. 172).
Lucas said that there were problems
in his relationship with the complainant
because she became possessive and jealous
of him (R. 181). He said that she had
gotten into a physical fight with another
woman over him because he had talked to
that woman at a party (R. 182). He
stated that another reason there were
problems in their relationship was be-
cause Brown had given him gonorrhea (R.
182).. Lucas testified that he had been
seen by a doctor at the Herman Keifer
Clinic because of symptoms of burning on
urination and discharge (R. 190). He
stated that he was treated with tetra-
cycline pills (R. 190-191).
In rebuttal, jt was stipulated that
had Dr. Michael Sampson been recalled to
the witness stand he would have testified
that the complainant did not have any
venereal disease and that she was not
pregnant when he examined her (R. 233-
234). Brown testified, on rebuttal, that
she was not pregnant and that she had not
had a venereal disease (R. 235-236).
Officer Barden testified that the
scratches on the Respondent's wrists were
extremely straight. She testified that
she had previously seen scratches left by
kittens and that she did not feel that
the scratches on his wrists were made by
a kitten (R. 242-243).
After the closing arguments of coun-
sel, the court found the Respondent
guilty of two counts of criminal sexual
conduct in the third degree. The judge
stated that he had some doubt concerning
the presence of a weapon during the acts
of penetration. While he noted that
there were minor inconsistencies in her
testimony, the complainant was found to
- 21 -
be credible. The judge noted that the
injuries to the complainant's face were
consistent with a "brutal blow" (R. 262-
266).
On July 2, 1985, the Respondent was
sentenced to a term of imprisonment of
from three years and eight months to
fifteen years (R. 285).
The Respondent's conviction was
reversed and the matter was remanded for
a new trial by the Michigan Court of
Appeals which concluded that the notice
requirement of MCL 750.520}3(2); MSA
28.788(10)(2) was unconstitutional when
applied to exclude evidence of prior
sexual relationship between a defendant
and a victim. People v. Lucas, 408
N.W.2d 431 (Mich.App. 1987) (Petition for
Certiorari, pp. la-7@) -
After having held the Petitioner's
application for leave to appeal in abey~
ance pending the court's decision in
People v_ LaLone (Docket No. 79221), the
Michigan Supreme Court remanded the case
- 22 =
to the Court of Appeals to determine
"whether the trial court's denial of the
defendant's motion to introduce evidence
regarding past sexual relations between
him and the complainant was harmless
beyond a reasonable doubt." (Petition
for Certiorari, pp. 8a-9a).
On remand, the Michigan Court of
Appeals again reversed the Respondent's
conviction, stating that "(s)ince the
question of credibility was central to
this case, we cannot say exclusion of
defendant's proposed testimony was harm-
less beyond a reasonable doubt. People v
Robinson, 386 Mich 551, 563; 194 NW2d 709
(1972)." (Petition for Certiorari, p.
12a).
The Michigan Supreme Court denied
leave. (Petition for Certiorari, p. 13a).
This Court then granted the Petition
for Certiorari.
- 23 -
SUMMARY OF ARGUMENT
The issue presented in this case is
whether the Confrontation Clause of the
Sixth Amendment or the right to present a
defense is violated by the exclusion of
arguably relevant evidence to be used on
cross-examination or in contradiction of
a sexual assault for the failure to file
a required notice of intent to employ
such evidence and, thus, obtain a pre-
trial hearing on its admissibility/legal
relevance. The Michigan Court of Appeals
answered this question in the affirmative
in this case and further held that the
erroneous exclusion of the evidence was
not harmless beyond a reasonable doubt.
Petitioner disagrees.
The right to confrontation ensures
an accused the "opportunity" to conduct
an effective cross-examination of adverse
witnesses. Also, the Sixth Amendment
implicitly assures the defendant that he
will not be prevented from presenting
relevant evidence in his own behalf.
- 24 -
The rape shield law is intended to
protect a sexual assault victim from
having to expose her sexual history when
it is irrelevant to the issue of the
accused's guilt or innocence. It avoids
any undue harassment of the victim and
excludes evidence which is misleading,
inflammatory, and of minimal probative
worth.
Petitioner submits that this law,
however, does not in any way infringe
upon the accused's right to confrontation
Since it provides a procedural mechanism
whereby probative evidence may be shown
to be admissible. All that a defendant
is required to do is show a legitimate
need for the evidence (that it is legally
relevant to the defense asserted) and
that it is therefore more probative than
prejudicial.
Petitioner further submits that each
procedural rule, including the notice
requirement, is a valid and essential
means to protect the victim of rape while
- 25 -
insuring the constitutional rights of the
accused. The notice requirement prevents
unwarranted surprise by permitting the
prosecution to conduct its own investiga-
tion of the proposed evidence in order to
challenge its admissibility. Where the
actions or omissions of the accused are
clearly inexcusable, preclusion of such
evidence for failure to file a timely
notice is not an unreasonable remedy.
Lastly, Petitioner submits that
where, as in the instant case, it can be
shown that the accused was in no way
prejudiced by the preclusion of evidence
there has been no violation of the right
to confrontation or of his ability to
present evidence in his defense.
- 26 -
NEITHER THE CONFRONTATION CLA
OF THE SIXTH AMENDMENT NOR THE
RIGHT TO PRISENT A DEFENSE ARE
VIOLATED BY THE EXCLUSION OF
ARGUABLY RELEVANT EVIDENCE TO BE
USED ON CROSS-EXAMINATION OR IN
CONTRADICTION OF A SEXUAL AS-
SAULT VICTIM FOR FAILURE TO FILE
A REQUIRED NOTICE OF INTENT TO
EMPLOY SUCH EVIDENCE (THEREBY
OBTAINING A PRETRIAL HEARING ON
ITS ADMISSIBILIT =
VANCE) . Y/LEGAL RELE
I. THE RIGHT TO CONFRONTATION.
The Confrontation Clause of the
Sixth Amendment, guarantees the accused
the right to confront the witnesses
against him. California v Green, 399
U.S. 149, 157, 90 S.Ct. 1930, 1934
(1970). The primary purpose of the
confrontation guarantee is to give the
defendant the opportunity to cross-
examine the witnesses against him. Davis
v Alaska, 415 U.S. 308, 315-16, 94 S.Ct.
1105, 1110 (1974):
"'The main and essential pur
of confrontation is to "aoheme
>
of cross-examination.'" -
Sis in original). —
- 27 -
In Chambers v Mississippi, 410 U.S.
284, 93 S.Ct. 1038 (1973), this Court
observed that the right to confront and
the extent of cross-examination is not
limitless:
"The right to confront and to
cross-examine is not absolute
and may, in appropriate cases,
bow to accommodate other legiti-
mate interests in the criminal
trial process. ... But its
denial or significant diminution
calls into question the ultimate
‘integrity of the fact-finding
process' and requires that the
competing interest be closely
examined." 410 U.S., at 295, 93
S.Ct., at 1046.
Thus, as noted by this Court in
Delaware v Van Arsdall, 475 U.S. 673, 106
S.Ct. 1431 (1986), a trial court may
impose reasonable limits upon inquiry
into the potential bias of a prosecution
witness which include such factors as:
"... harassment, prejudice,
confusion of the issues, the
witness' safety, or interroga-
tion that (would be) repetitive
or only marginally relevant ..."
475 U.S., at 679, 106 S.Ct., at
1435.
Consequently, even relevant evidence
may be barred as long as the defendant is
- 28 =-
not prohibited outright from utilizing
the opportunity to present the evidence
or offer proof of its relevance. "Stated
otherwise, neither the Sixth Amendment
Confrontation Clause, nor due process,
confers on a defendant an unlimited right
to admit all relevant evidence or cross-
examine on any subject." People v
Hackett, 365 N.W.2d 120, 124 (Mich.
1984).
Again, it is the "opportunity" which
must be afforded the defendant to cross-
examine adverse witnesses which is of
paramount concern in the context of the
Sixth Amendment. This principle was
stated in the following manner by this
Court in Delaware v Fensterer, 474 U.S.
15, 106 S.Ct. 292 (1985):
"Generally speaking, the Con-
frontation Clause ~ ee. nm
opportunity for effective cross-
examination, not cross-examina-
tion that is effective in what-
ever way, and to whatever ex- -—<
tent, the defense might wish.
[474 U.S., at 20, 106 S.Ct., at
294] (emphasis in original) . 4
* *
"(T)he Confrontation Clause is
generally satisfied when the
= 29 -
defense is given a full and fair
opportunsty to probe and expose
these infirmities through cross-
examination, thereby calling to
the attention of the factfinder
the reasons for giving scant
weight to the witness' testi-
mony." (474 U.S., at 22, 106
$.ct., at 295}.
In accord with these principles, the
Court reviewed the petitioner's sodomy
conviction in the recent case of Olden v
Kentucky, 488 U.S. __, 109 S.Ct. 480
(1988). There, the defense asserted was
consent. Olden's theory of the case was
that the complainant had fabricated the
rape and sodomy charges to protect her
relationship with her boyfriend. Defense
counsel contended that in order to show
the complainant's motive to lie it was
necessary to introduce evidence of the
fact that the complainant and her boy-
friend were then living together. Find-
ing that the prejudicial nature of the
evidence outweighed its admittedly proba-~-
tive value, the trial court granted the
prosecution's motion in lLimine to keep
all evidence of current cohabitation from
e 30 «
the jury.1
As the Confrontation Clause includes
the right to conduct "reasonable" cross-
examination (488 U.S., at , 2109 §.Cct
. . ,
at 483), the Court found that an absolute
ban on any inquiry into the complainant's
living arrangement for the stated purpose
of demonstrating the complainant's motive
to lie was "beyond reason". (488 U.S.,
at __, 109 S.Ct., at 483). Implicit in
the Court's holding was the fact that the
petitioner had made a clearly sufficient
showing of the unique relevance of the
proffered evidence to the central issue
in the case. Because of this, a harmless
error analysis could not be applied.
Delaw Vv V , 488 U.S., at
, 109 S.Ct., at 483-84.
What is clear from this line of
authority is that a defendant must be
i. This Court noted that th
e st
appellate court specifically held to
the evidence of cohabitation at the time
of trial was not b
a Bg fg arred by the state's
- 3l1-
permitted to pursue a course of cross-
examination which is both effective and
reasonable as it relates to issues which
are crucial to the case against hin.
However, even evidence which may be
characterized as legally or logically
relevant may be excluded if it runs afoul
of legitimate state interests. Where
these two interests collide, a court must
undertake an analysis of the competing
interests in order to strike a balance
which will ensure that the right to a
fair trial is not denied either to the
accused or to the state.
As an integral part of the “interest
balancing process", legislative and
judicial bodies may promulgate rules
which are designed to foster an informed
determination without infringing upon a
defendant's right to confrontation. To
provide for an orderly determinative
process which is fundamentally fair to
both parties, such rules may require a
pretrial hearing to test the relevance of
=
proposed evidence to the actual issues in
the case.2
Frequently, these procedural pre-
requisites will include a provision for
notice which is intended to avoid the
unnecessary and unjust surprise which
would otherwise befall the opposing side.
A notice provision also ensures that the
Opponent of the proffered evidence will
be provided with sufficient time to
conduct its own review of the evidence
and to gather additional evidence to
rebut the claim of admissibility. It
also ensures that inadmissible evidence
2. "The in camera hearing ... is an
important safeguard as it provides the
least drastic infringement on the defen-
dant's rights when there is relevant
evidence applicable to a truth-seeking
exception. Certainly, the state's inter-
est ... together with the safeguards set
out in the statute balances the scales in
favor of such a state interest and there-
by does not infringe upon the Appellant's
Sixth Amendment rights. The defendant's
right to confront and cross-examine
witnesses concerning the victim's past
sexual behavior with others must bow to
accommodate the state's interest in the
Rape Shield Statute." Harris v State,
362 S.E.2d 211, 213 (Ga. 1987).
- 33e-
will be rejected before being placed
before the jury which will otherwise
cause prejudicial, and often irreparable,
harm to the opponent of the evidence.
The overriding concern of such rules
is the preservation of the parties' right
to a fair trial. One such rule is the
rape shield law.
II. RAPE SHIELD LAWS AND NOTICE
Prior to the adoption of rape shield
laws, the prevalent view was that opinion
and reputation evidence of a victim's
consensual sexual activity was probative
of a woman's consent with a defendant and
of her credibility as a witness. See 2
Weinstein & Berger, Evidence, s. 412[01],
pp. 412-10. Later, a critical evaluation
of such a rule of evidence and an evolv-
ing theory that sexuality was clearly
distinct from crimes of sexual violence
compelled the Michigan Legislature to
enact sweeping reforms of the rape laws
- 34 -
in 1974. Aside from “redefining the
crime of 'rape' into the more expansive
and gender-neutral concept of criminal
sexual conduct, the Legislature also
tailored the evidentiary considerations
in sexual-assault prosecutions to focus
upon the merits of the accused's guilt or
innocence rather than the victim's behav-
ior." People v LaLone, 437 N.W.2d 611,
619-620 (Mich. 1989).
In addressing the defendant's claim
that the rule set forth in Michigan's
rape shield law [M.C.L.A. Sec. 750.5203;
M.S.A. Sec. 28.788(10)] which excluded
evidence of a complainant's previous
sexual conduct with persons other than
the defendant violated his constitutional
right to confrontation, the court in the
case of People v Khan, 264 N.W.2da 360
(Mich.App. 1978) noted the purposes of
the act:
"(W)e observe that this
provision--an integral part of
Michigan's criminal sexual con-
duct act--represents an explicit
legislative decision to elimi-
nate trial practices under
- 35 -
former law which had effectually
frustrated society's vital
interest in the prosecution of
sexual crimes. In the past,
countless victims, already
scarred by the emotional (and
often —_ trauma of rape,
refused to report the crime or
testify for fear that the trial
proceedings would veer from an
impartial examination of the
accused's conduct on the date in
question and instead take on
aspects of an inquisition in
which complainant would be
required to acknowledge and
justify her sexual past.
* * *
"“'primarily, *** [rape
shield statutes] serve the sub-
stantial interests of the state
in guarding the complainant's
sexual privacy and protecting
her from undue harassment. In
line with these goals, they
encourage the victim to report
the assault and assist in bring-
ing the offender to justice by
testifying against him in court.
Insofar as the laws in fact
increase the number of prosecu-
tions, they support the govern-
ment's aim of deterring would-be
rapists as well as its interest
in going after actual suspects.
These statutes are also intend-
ed, however, to bar evidence
that may distract and inflame
jurors and is of only arguable
probative worth. To the degree
that they aid in achieving just
convictions and preventing
acquittals based on prejudice,
they naturally further the
truth-determining function of
trials in addition to more
collateral ends.'" 264 N.W.2d
at 364.
- 36 =
Since Michigan's enactment of its
rape shield statute, similar provisions
have been adopted in each state and by
the federal government (Fed.R.Evid. 412).
Comment, "The Rape Shield Paradox: Conm-
plainant Protection Amidst Oscillating
Trends of State Judicial Interpretation",
78 J.Crim.L.&Criminology 644 (1987).
From the position taken under former
law which espoused a rule of inclusion,
the current rule which favors exclusion
of such evidence has arisen. ze is,
however, a rule which is not unmindful of
the confrontation rights of the accused.
As noted in People v Hackett, 365 N.W.2ad
120, 125 (Mich. 1984):
"The determination of
admissibility is entrusted to
the sound discretion of the
trial court. In exercising its
discretion, the trial court
should be mindful of the signi-
ficant legislative purposes
underlying the rape-shield
statute and shc alway °
plainant's sexual conduct wh
(emphas Ss added)
- 37 -
Despite challenges to the constitu-
tionality of rape shield laws based upon
a claim that they violate the defendant's
Sixth Amendment right to confrontation,
courts have repeatedly rejected them due
to the acknowledged validity of the state
interest involved and the purposes for
which the laws were adopted. See e.g.,
People v Arenda, 330 N.W.2d 814 (Mich.
1982); People v McKenna, 585 P.2dad 275
(Colo. 1978); State v Hamilton, 289
N.W.2d 470 (Minn. 1979); State v Howard,
426 A.2da 457 (N.H. 1981).
R S TO
A: XDMISSION OF SEXUAL HISTORY
EVIDENCE.
In the rare cases in which evidence
of a complainant's sexual history may be
relevant, rape shield laws provide a
mechanism to test the admissibility of
the proposed evidence. These procedures
invariably include the submission of a
motion to allow the use of such evidence,
an offer of proof, a supporting affida-
- 38 -
vit, and an in camera hearing. Most
states permit the hearing to be held at
any time before trial (See 2 Weinstein &
Berger, Evidence, ss. 412[01])=-412[03},
pp. 412-10-412-33). However, many others
have established a notice requirement
which directs the accused to inform the
court and the prosecution of his intent
to admit such evidence. While Michigan
appears to be the only state which re-
quires the notice to be filed "within 10
days after the arraignment on the
information" [M.C.L.A. 750.5204(2);
M.S.A. 28.788(10)(2)], other states and
the federal government direct the notice
to be filed at various times before the
start of trial.3
3. E.g., Ark. Code Ann., s. 16=-42-101
(c)(2) (A) (3 days); Colo. Rev. Stat., s.
18-3-407(2) (a) (30 days); Ind. Code Ann.,
S. 35-37-4-4(c)(1) (10 days); Kan. Stat.
Ann. S., 21-3525(2) (7 days); Neb. Rev.
Stat., S. 28-321(1) (15 days); Ohio Rev.
Code Ann., S. 2907.02(E) (3 days); Ore.
Evid. Code, Rule 412(3)(a) (15 days);
Wyo. Stat. Ann., Ss. 6-2-312(a); Fed. R.
Evid. 412(c)(1) (15 days).
- 39 -
Nevertheless, a defendant is not
precluded from offering such evidence
even though there may be a failure to
comply with the notice requirement. In
such an event, the notice requirement may
be “waived by the court” [(Kan.Stat.Ann.
S. 21-3525(2)]; the hearing may be held
if "good cause" is shown [Ky.Rev.Stat.
Ann., 8s. 510.145(3)(a))? or, if “new
information is discovered during the
course of trial" [M.C.L.A. 750.5203(2);
M.S.A. 28.788(10) (2)].
What all of these provisions have in
common is (1) a motion or an offer of
proof must be made which states the claim
that evidence of prior sexual conduct is
relevant to an issue in the case and (2)
a hearing outside the presence of the
jury may be held in order to determine
whether such evidence, if relevant, must
be admitted to protect the accused's
right to confrontation (or, stated dif-
ferently, that its probative value out-
weighs its inflammatory or prejudicial
- 40 -
nature since it is necessary to a crucial
aspect of the defense theory of the
case).
1. RELEVANCE AND NECESSITY
EVIDENCE TO THE DEFENSE
ASSERTED) .
The Michigan rape shield law is
guite similar to those found in other
jurisdictions. It precludes opinion or
reputation evidence as well as evidence
of “specific instances" of the victim's
sexual conduct [M.C.L.A. 750.5204 (1);
M.S.A. 28.788(10)(1)}. Certain evidence
is admissible upon a determination that
its probative value outweighs its inflan-
mecory or prejudicial nature [M.C.L.A.
750.5203(1); M.S.A. 28.788(10) (1)]:
"(a) Evidence of the victim's
past sexual conduc
SS t with the
"(b) Evidence of specific
instances of sexual Sctivity
showing the source or origin of
semen, pregnancy, or disease."
It then sets out the procedural
prerequisites which must be satisfied to
- 41 -
permit admission of the evidence. 4
Once the threshold notice require-
ment is met, the following procedures are
utilized in resolving the question of
admissibility [People v Slovinski, 420
N.W.2d 145, 150 (Mich.App. 1988) ]:
"The defendant is required to
offer proof as to the proposed
evidence and
The offer of proof must be
sufficient as to a defendant's
confrontation right, as distinct
from use of prior sexual history
as character evidence or for
impeachment. Id. [Hackett],
350, 365 N.W.2d 120.
"If defendant's offer of
procf withstands this level, the
trial court continues to possess
discretion to exclude the rele-
vant evidence offered where its
4. "(2) If the defendant proposes to
offer evidence described in subsection
(1) (a) or (b), the defendant within 10
days after the arraignment on the infor-
mation shall file a written motion and
offer proof. The court may order an in
camera hearing to determine whether the
proposed evidence is admissible under
subsection (1). If new information is
discovered during the course of the trial
that may make the evidence described in
subsection (1)(a) or (b) admissible, the
judge may order an in camera hearing to
determine whether the proposed evidence
is admissible under subsection (1)."
probative value is substanti
outweighed by the risks of a
fair prejudice, confusion of
issues, or misleading the jury.
Id., 351, 365 N.W.2d 120. ° See
also MRE 403. The trial court
should favor exclusion of this
type of evidence unless exclu-
Sion would ‘unduly infringe on
the defendant's constitutional
right of confrontation. '
351, 365 N.W.2d 120." :
saded} 20 (emphasis
While "seemingly" relevant evidence
will often withstand the first level of
examination, the inquiry is not over. To
establish admissibility, the defense must
then demonstrate its specific "neea" for
the evidence to the purpose for which its
admission is sought.5
While an accused's claim of prior
consensual sexual activity with the con-
<“. In United States v Nixon
418 U.S.
683, 713, 94 8.Ct. 3090, 3110 (1974),
- 43 -
plainant in a rape case will usually
satisfy the first level of the inquiry
where the defense offered is one of
consent (i.e. general relevance), the
specific evidence sought to be admitted
must then be examined in light of the
determinative issue raised in the case in
order to preserve the accused's right to
confrontation (i.e. specific need) .®
Thus, a generalized claim of prior
sexual conduct between a defendant and a
complainant does not end the inquiry -
even where the defense asserted is one of
consent to the present charge. Depending
upon the evidence to be adduced at trial
and the defense presented, the details of
6. See e.g., Munn v state. 505 N.E.2d
782, 785 (Ind. 1987) [prior consensual
sexual conduct with the accused is not
relevant where the defense is alibi);
People v Smith, 340 N.W.2d 855, 856-857
(Mich.App. 1983) [complainant's past
sexual conduct with the defendant is not
admissible when the defense of consent is
not raised at trial because it is not
"“tmaterial to [any] fact at issue in the
case', M.C.L. S&S. 750.5203(1); M.S.A.
28.788(10)(1)").
~ 44 -
the specific sexual acts performed or the
simple fact that a prior sexual encounter
occurred may or may not be admissible.
That decision cannot, and should not, be
made until a proper request is made and a
full hearing is held on the issue outside
the presence of the jury.
In People _v. Khan, supra, it was
claimed that the rape shield act violated
the right to confrontation because it
precluded evidence of the complainant's
prior sexual activity with persons other
than the defendant. 264 N.W.2d at 363.
It was alleged (without elaboration) that
such prior conduct may have been used to
establish the probability of consent.
The court rejected this contention and
noted that the defendant did not suggest
that the "'proof of prior sexual conduct
pertains narrowly to acts evincing a
pattern of voluntary encounters charac-
terized by distinctive facts similar to
the current charges'." 264 N.W.2d at 367
(emphasis in original).
- 45 -
Evidence of a unique pattern of
sexual events during an encounter with
the complainant which the defendant
claimed occurred one week before the
events which led to the charge of assault
with intent to commit criminal sexual
conduct where deemed admissible in People
v Perkins, 379 N.W.2dad 390, 393 (Mich.
1986):
"Tf a factfinder, typically a
jury, were to believe the defen-~
dant's description of the en-
counter the previous week, that
evidence could influence its
decision as to whether the
events on March 6 amounted to an
assault or were consensual.
* *
"Many of the defendant's actions
on March 6 (as he described
them) might appear strange to a
jury except in the context of
his claim that a similar encoun-
ter had taken place the previous
week."
In State v Hopkins, 377 N.W.2d 110
(Neb. 1985), the court formulated an
evidentiary syllogism which it gleaned
from the state's rape shield law when it
considered the defendant's claim that
evidence of the victim's prior consensual
© 46 «
sexual activity with the accused should
have been introduced at trial:
"Major: The victim's past sexu-
al behavior with the defendant
was consensual. Minor: The
victim's behavior in the present
Prosecution is the
in which the victim
articipated with the defendant
n the past. Conclusion: There-
fore, the victim's behavior in
the present prosecution was
consensual." (377 N.W.2d at 116)
(emphasis added).
In finding that the defense failed
to produce the type of evidence which
tended to establish a “pattern of conduct
or behavior on the part of the victim as
to be relevant to the issue of consent"
(377 N.W.2d at 116), the court held that
"... in order that a victim's
past consensual sexual behavior
with a defendant be admitted as
evidence relevant to a charge of
sexual assault, the defendant
must, by offer of proof at the
in camera hearing, adduce some
evidence tending to prove a
defendant's claim that the vic-
tim consented to the sexual act
which is the subject of the
prosecuted charge against the
defendant." (377 N.W.2d at 117).
Thus, the failure to show that prior
sexual acts have a unique bearing upon
- 47 -
the specific nature of the theory of the
consent defense precludes the admission
of such evidence since it is not legally
or logically relevant to the central
issue in the case.’
Even where the proposed evidence of
prior consensual sexual conduct may be
admittedly material to the defense of
consent, such prior conduct may be so
remote in time that it is immaterial to
the charged offense. Compare State v
Williams, 681 P.2d 660, 664 (Kan. 1984)
(alleged conduct having occurred about
one and one-half years before the charged
offense) with State v Stellwagen, 659
P.2d 167, 168, 170 (Kan. 1983) (defendant
and complainant had not dated for seven
months prior to the date of the offense).
People v Williams, 330 N.W.2d $23
(ich 1982) (necessity of “logical —
vance" between the prior sexual acts —
the issue of consent); People v TR a
N.W.2d 213, 217 (Mich.App. 1986) ( pr =
sexual episodes which defendant ooney —-
have admitted were distinct and unre =
to the brutal acts involved in
charged offense.")
- 48 -
In many cases, evidence of prior
consensual sexual activity between the
accused and the complainant will be
relevant and admissible to the issue of
consent. Nevertheless, as the foregoing
authorities clearly indicate, the ques-
tion of its admissibility must be closely
examined before it can overcome the ex-
Cclusionary provisions of the rape shield
law. In the process of balancing the
competing interests involved, none of the
procedural prerequisites in themselves
impose an undue burden upon the accused.
This is obviously not only true of the
offer of proof and in camera hearing
requirements but it is also quite true
for the notice requirement.
2. PURPOSE OF NOTICE PROVISIONS.
A requirement that the defendant
disclose evidence which he intends to use
at trial does not result in the relin-
quishment or diminution of constitutional
rights. At most, it merely requires him
- 49 -
to accelerate his pre-trial preparation.
In Williams v Florida, 399 U.S. 78,
90 S.Ct. 1893 (1970), the petitioner
claimed that a state "notice-of-alibi"
rule which required him to give notice of
his intent to claim alibi, to furnish
information as to the place where he
claims to have been and to disclose the
names of the alibi witnesses he intends
to call deprived him of due process and a
fair trial and compelled him to be 4
witness against himself. in dismissing
these contentions, the Court made the
following observation:
"(T)he notice-of-alibi rule
by Senet in no way eeanesee
petitioner's crucial decision ”
call alibi witnesses or ageee °
the legitimate pressures lea -
to that course of action. -...
most, the rule only compe 7
petitioner to accelerate &
timing of his Sseeseeure.
forcing him to divulge ==
earlier date information =
the pets tsenee ts ro wee 4
j lanne °
cial.” Nothing in the tote
Amendment privilege entstiee | &
defendant as a matter of cons _
tutional right to await a 7
of the State's case be 7?
announcing the nature of =
defense, any more than it
- 50 -
titles him to await the jury's
verdict on the State's eabe-in-
chief before deciding whether or
not to take the stand himself."
399 U.S., at 85, 90 S.Ct., at
1898.
The Court also reflected upon the
role’ of discovery in the truth-seeking
process:
"The adversary system of trial
is hardly an end in itself; it
is not yet a poker game in which
players enjoy an absolute right
tS to conceal their cards
until played. (footnote omitted)
We find ample room in that sys-
tem, at least as far as ‘due
process' is concerned, for the
instant Florida rule, which is
designed to enhance the search
for truth in the criminal trial
by insuring both the defendant
and the State ample Sppertamity
to investigate certain facts
crucial to the determination of
guilt or innocence." 399 U.S.,
at 82; 90 S.Ct., at 1896.
The notice requirement found in rape
shield laws is also designed to foster
the same fundamental goals. A number of
valid, underlying purposes are served by
the notice provision.
The primary purpose of a rape shield
law is to exclude irrelevant evidence of
a victim's prior sexual conduct (even if
- 51-
such activity may have been undertaken
with the accused). The notice provision
affords the victim (and the prosecution)
maximum notice that such questioning may
occur. 2 Weinstein & Berger, Evidence,
p. 412-8.
By providing maximum notice of the
intent to use such evidence, the chance
that the prosecution may be surprised at
trial by the revelation of such evidence
is properly dispelled. Note, "If She
Consented Once, She Consented Again - A
Legal Fallacy in Forcible Rape Cases", 10
Val.U.L.Rev. 127, 164 (1976). See also,
Wright v State, 513 A.2d 1310, 1313
(Del.Supr. 1986). By avoiding undue
surprise, the notice requirement also
ensures that potentially prejudicial
evidence will not be revealed to the jury
unless its admissibility is first deter-
mined by the court outside its presence.
In People v Williams, 330 N.W.2d 823
(1982), Justice Kavanagh wrote a separate
opinion explaining his reasons for
upholding the constitutionality of the
notice provision in light of the claim
that it violated the accused's right to
confrontation:
"The notice rogusrenent
serves the purpose of ensurin
that a victim's sexual past wil
not be exposed to public scru-
tiny without an in deter-
mination that such evidence is
more probative than prejudicial.
The state has a legitimate
interest in encouraging victims
to report criminal sexual con-
duct and to assist in prosecu-
tions therefor. So long as
efforts such as this statute to
further this Purpose do not
infringe on a defendant's con-
Stitutional right to confront
his accusers and produce evi-
dence in his own ehalf, they
are permissible.
"The procedural requirement
of notice so that an camera
hearing may determine the appro-
priate action to serve both ends
appears to us as proper and ade-
quate.
"We find no error in the
trial court's ruling that the
evidence proffered here was
inadmissible because of the
failure to observe the notice
requirement." (330 N.W.2d at
832).
There is yet another consideration
which supports the validity of a notice
provision. As with a claim of alibi, a
- 53 -
notice requirement provides the prosecu-
tion sufficient time to investigate the
allegation and gather additional evidence
in order to confront the claim adequately
at an in camera hearing.
This procedural requirement is of
particular importance when an accused
determines that his best course of action
is to fabricate a claim that he and the
complainant had previously engaged in
consensual sexual activity.
In many cases, a defendant's claim
that he and the complainant had engaged
in prior consensual sexual conduct may be
acknowledged as true by the complainant.
Yet in many other cases, such a charge by
the defendant may be met with a vehement
denial by the victim. That such a base-
less charge can easily be made and, thus,
deny the victim any protection from such
an accusation was noted by the court in
Harris v State, 362 S.E.2d 211, 213 (Ga.
1987):
"There is also the compel-
ling interest of the state to
© 84 «
protect its citizens from -
nal acts and to Scene tke
victims to bring the perpetra-
tors of the crimes to justice.
There is no other crime we can
think of in which ad. af phe
Simply because s
fabricate a charge{,}' os
v. State, 255 Ga. 151, 156, 336
S.E.2ad 221
clout (1985) (emphasis in
If a defendant (who has failed to
file a timely notice) merely has to
allege that he engaged in prior sexual
relations with the complainant in order
to place that accusation before the trier
of fact, then the purpose of the rape
shield law has been eviscerated.
In reversing Respondent's conviction
in the instant case, the Michigan Court
of Appeals [People v Lucas, 408 N.W.2d
431, 432 (1987)} relied upon People v
Williams, 289 N.W.2d 863 (Mich. App.
1980) wherein the court found that
neither the notice requirement nor the in
camera hearing procedure applied:
"The object behind im ~
sean of a notice semsineneie is
ro allow the prosecution to
investigate the validity of a
- $5 -
defendant's claim so as to bet~
ter prepare to combat it at
trial. This rationale is sound
when applied to notices of alibi
and insanity defenses. It loses
its logical underpinnings how~
ever when applied to the instant
situation. As stated, the very
nature of the evidence sought to
be presented, i.e., prior in-
stances of sexual conduct be-
tween a complainant and a co-~
defendant, is personal between
the parties. As such, it does
not involve a subject matter
that requires further witnesses
to develop. An camera hear-
ing will necessarily focus on a
complainant's word against the
word of a codefendant. Requir-
ing notice in this situation,
then, would serve no useful
purpose. There would be no
witnesses to investigate and,
thus, no necessity for prepara~
tion time." 289 N.W2d at 866-
867.
As the claim of prior sexual conduct
between the defendant and the victim will
not simply “focus on a complainant's word
against the word" of the accused in every
case, the court's reasoning in Williams
and Lucas is indeed shallow. A victim's
denial of prior sexual activity with the
defendant does not immediately become a
“credibility contest" which must then be
- 56 -
submitted to the jury for its considera-
tion. o hold otherwise would place the
victim “on trial" by requiring her to
"Justify her sexual past" [People v Khan
264 N.W.2d 360, 364 (Mich.App. 1978) }
thereby defeating the fundamental purpose
of the rape shield law. Thus, the slight
inconvenience of conducting an in camera
hearing (preceded by filing a timely
notice) avoids any infringement of the
accused's right to confrontation and
preserves the victim's right to privacy.
That a claim of prior sexual conduct
between a defendant and a complainant is
not necessarily a matter to which only
they could testify is easily illustrated.
Suppose that the defendant and the con-
plainant meet each other at a New Year's
Eve party at the home of a third person
and that the defendant leaves the party
alone a short time later while the com-
plainant remains in the company of her
host for the remainder of the evening.
At trial, the defendant claims that he
- 57 -
and the complainant stayed together for
the entire evening during which time they
engaged in sex at the party. The prose-
cution should have the opportunity to
produce the host or others attending the
party to testify that the defendant only
stayed for a few minutes and then left by
himself. Alternatively, the prosecution
should be provided the opportunity to
produce witnesses or documentation (e.g.
a visa entered upon the complainant's
passport or an airline ticket) to show
conclusively that the complainant did not
attend the party and, if fact, was out of
town or at another location at the time
when the alleged sexual episode took
place.
If it can be shown to the satisfac-
tion of the trial judge at the in camera
hearing that the defendant's claim is a
mere fabrication and that his testimony
on the matter would amount to perjury, he
could properly be precluded from present-
ing the false allegation to the jury. As
- 58 -
the Court noted in Nix v Whiteside, 475
U.S. 157, 173, 106 S.Ct. 988, 997 (1986):
"Whatever the Scope of a
constitutional right to testify,
it is elementary that such a
yh a does not extend to testi-
ying falsely. In Harris v. New
York, we assumed the right of an
accused to testify ‘in Ais own
defense, or to refuse to do so'
and went on to hold:
'(T)hat privilege cannot be
construed to include the
right to commit perjury.
[citations otter! Having
at 225, 91 S.Ct., at 645.
7 7 *
“Harris and other cases make it
crystal clear that ther- is no
right whatever - consti-utional
Or other wise - for a defendant
to use false evidence."
Seeking a judicial determination of
the admissibility of evidence of alleged
prior sexual relations between an accused
and a complainant in an in camera hearing
wherein the prosecution is afforded an
Opportunity to Challenge the claim by
Showing that it is irrelevant to an issue
in the case, that it is far too remote,
or, that it is simply a fabrication fur-
- 59 =
thers the truth-seeking function of the
criminal trial. It prevents unduly
prejudicial or perjurious evidence from
going before the jury without infringing
upon the defendant's right to confronta-
tion. In order to achieve this result,
the notice requirement ensures the right
of the prosecution to investigate and to
rebut with evidence of its own an allega-
tion which should not be placed before
the trier of fact.
B. FAILURE TO FILE TIMELY NOTICE
AND PRECLUSION OF EVIDENCE.
As previously noted, rules which
require pretrial disclosure of the intent
to raise certain defenses (e.g. alibi)
have been held to be constitutional.
Williams v Florida, 399 U.S., at 83, 90
S.Ct., at 1897. Since the issue of the
constitutionality of a preclusion sanc-
tion for failure to comply with a notice-
of-alibi rule was not properly before the
Court in Williams v. Florida, it was not
- 60 -
addressed. 399 U.S., at 83, n. 14, 90
S.Ct., at 1897, n. 14.
In Wardius v Oregon, 412 U.s. 470,
93 S.Ct. 2208 (1973), the Court held that
@ state statute which barred the admis-
Sion of alibi evidence as a sanction for
the defendant's failure to comply with a
notice-of-alibi rule was unconstitutional
Since it did not Provide reciprocal dis-
covery rights for criminal defendants.
As the Court found that the rule was
facially invalid, it dia not express an
opinion regarding the Petitioner's added
Claim that ",,., even if Oregon's
notice-of-alibi rule were valid, it could
not be enforced by excluding either his
Own testimony or the testimony of
Supporting witnesses at trial." 412
U.S., at 472, n. 4, 93 S.Ct., at 2211, n.
4.
In United States y Nobles, 422 U.S.
225, 95 S.Ct. 2160 (1975), the defendant
alleged that his Sixth Amendment rights
to compulsory process and cross~-examina-
tion were violated by the trial court's
decision to exclude the testimony of an
expert witness whom he intended to call
because he had refused to comply with a
discovery order granting the prosecution
access to a "highly relevant" report. In
upholding the remedy applied by the Dis-
trict Court, it was noted:
"The court's preclusion
sanction was an entirely proper
method of assuring compliance
with its order. Respondent's
argument that this ruling de-
prived him of the Sixth Amend-
ment right of compulsory process
and cross-examination miscon-
ceives the issue. The District
Court did not bar the investiga-
tor's testimony. Cf. Washington
v. Texas, 388 U.S. 14, 19, 87
S.Ct. 1920, 1923, 18 L.Ed.2d
1019 (1967). It merely prevent-
ed respondent from presenting to
the ju a partial view of the
credibility issue by adducing
the investigator's testimony and
thereafter refusing to disclose
the contemporaneous report that
might offer further critical
insights. The Sixth Amendment
does not confer the right to
te testimony free from the
egitimate demands of the adver-
sarial system; one cannot invoke
the Sixth Amendment as a justi-
fication for presenting what
might have been a half-truth."
422 U.S., at 241, 95 S.Ct., at
2171.
Rules requiring the disclosure of
evidence which either party intends to
employ at trial further the legitimate
purposes of the criminal justice system
by ensuring that each side will be per-
mitted to explore and test the relevance
of proposed evidence. They increase the
likelihood that complete and accurate
evidence is laid before the jury. Stated
differently, discovery procedures which
apply equally to the defense and the
prosecution guard against the danger that
inadmissible, misleading or fabricated
evidence will infect the parties' right
to a fair trial.
In Taylor v Illinois, 484 U.s. 400,
108 S.Ct. 646 (1988), the trial court
barred a defense witness from testifying
before the jury a’ a sanction for the
failure to identify the witness pursuant
to the prosecution's discovery motion
requesting a list of defense witnesses.
The trial judge based his decision upon a
finding that defense counsel had commit-
ted a blatant and willful violation of
- 63 -
the discovery rules. Following a hearing
outside the presence of the jury which
included an offer of proof in the form of
the witness's testimony, the judge noted
a second reason to exclude the testimony;
namely, that he doubted the veracity of
the witness. In finding that the Sixth
Amendment right to compulsory process
does not create an absolute bar to the
preclusion of testimony of a defense
witness as a sanction for violating a
discovery rule, the Court made the fol-
lowing pertinent observations:
"Discovery, like cross-examina-
tion, minimizes the risk that a
judgment will be predicated on
incomplete, misleading, or even
deliberately fabricated testi-
mony. The ‘State's interest in
protecting itself against an
eleventh hour defense' is merely
one component of the broader
public interest in a full and
truthful disclosure of critical
facts." 484 U.S., at 411-412,
108 S§.Ct., at 653-654 (footnote
omitted).
7 . *
"One of the purposes of the dis-
covery rule itself is to mini-
mize the risk that fabricated
testimony will be believed.
Defendants who are willing to
fabricate a defense may also be
willing to fabricate excuses for
’ =.
- 64 -
failing to comply with a dis- | it in a gh ay ~ 4 —
covery requirement. The risk of solely — Se che right re-
a contempt violation may seem very goo its effective use be
trivial to a defendant facing quires t > deliberate planning
the threat of imprisonment for a preceded by de duct." 484
corn og eee. 8? Se Ons. at 410, 108 S.ct., at 653
tern of discovery violations is U.S., ~ itted) , ¥
explicable only on the assump- (footnote om ;
deslened be nea "sien x * While the right to confrontation is
resent fabricated testimon it
ae be ree appropriate to at issue in the instant case, so too is
exclude the tainted ev denc
regardless of whether ether the right to present evidence by way of
ea' 48s Uses at eisai ne ibs | defense, The duty of the defendant to
oes So: take affirmative steps to secure the
A important distinction between the opportunity to present evidence of a
Compulsory Process Clause and other complainant's prior sexual conduct is
rights protected by the Sixth Amendment
was noted by the Court in Taylor:
more akin to his burden of having to
employ his own initiative to secure
"There is a significant
difference between the Compul- evidence in his own defense under the
other ny that aoe eee Compulsory Process Clause and should be
etedtonsitee” Pry mn in governed by similar principles.
tiat ve. “Hect atiee inne While lack of consent is not a issue
caliyvon cagéts arise autonati- which must be proven beyond a reasonable
adversary process and no action
by the defendant is necessary to
make them active in his or her
case. While those rights shield
the defendant from potential
prosecutorial abuses, the right
to compel the presence and pre-
— a -- woenenece (tich.a
provides the defendant with a a at 366 n. 5 ich.App.
Sword that may be employed to Bhan, 264 H.U.2¢
rebut the prosecution's case. 1978)
The decision whether to employ '
doubt in order to obtain a conviction for
the offense of criminal sexual conduct,
it is a defense to the charge which may
be raised by the accused. See People v
- 66 =
People v Hearn, 300 N.W.24 396, 398
(Mich.App. 1980). Since it is a defense
which must be asserted by the accused,
it is similar in nature to the alibi
defense. Like other affirmative
defenses, a state may adopt reasonable
rules of discovery and disclosure which
afford the prosecution the Opportunity to
confront the evidence and challenge its
admissibility hefore submission to the
trier of fact.
Unlike the situation in Davis v.
Alaska, where the accused could exercise
no control over the court to obtain rele-
vant evidence tending to establish bias
(due to the absolute ban imposed by a
state statute on the introduction of a
witness's Probationary status following
an adjudication of juvenile delinquency),
it is the defendant in a criminal sexual
conduct prosecution who "controls" the
introduction of relevant evidence of his
prior consensual sexual relations with
the complainant if he chooses to assert a
- 67 -
defense of consent. All that the accused
is required to do is comply with the pro-
cedural requirements of the rape shield
law.8
Just as there is no absolute bar to
the preclusion of evidence as a sanction
for the violation of a discovery rule
under the Compulsory Process Clause,
there should be no absolute bar to a
similar preclusion remedy for the failure
to comply with the notice requirement of
the rape shield law under the Cenfrenta-
tion Clause of the Sixth Amendment:
"A trial judge may certain-
ly insist on an explanation for
a party's failure to comply with
8. Cf. Taylor v. Illinois, 484 U.S., at
415-416, 108 S.Ct., at 656 ("The simplic-
ity of compliance with the discove rule
is also relevant. As we have noted, the
Compulsory Process Clause cannot be in-
voked without the prior planning and
affirmative conduct of the defendant.
Lawyers are accustomed to meeting dead-
lines. Routine preparation involves
location and interrogation of potential
witnesses and the serving of sub nas on
those whose testimony will be offered at
trial. The burden of identifying them in
advance of trial adds little to these
routine demands of trial preparation."
[footnote omitted])).
@ request to identify his or her
witnesses in advance of trial.
If that explanation reveals that
the omission was willful and
motivated by a desire to obtain
a tactical advantage that would
minimize the effectiveness of
cross-examination and the abili-
ty to adduce rebuttal evidence,
it would be entirely consistent
with the purposes of the Compul-
sory Process Clause simply to
exclude the witness' test mony."
484 U.S., at 415, 108 S.ct., at
655-656 (footnote omitted).
State and federal courts have upheld
or approved the sanction of preclusion
for the failure of the defense to comply
with the various procedural prerequisites
of the rape shield laws. These rules
include the requirement to file a timely
motion or provide the court and the pros-
ecution with proper notice of the intent
to introduce evidence of prior sexual
conduct.9 Failure to file a required
9. People v Smith, 340 N.W.2d 855, 856
(Mich.App. 1983), State v Risdal, 404
N.W.2d 130, 132 (Iowa 1987), State v
Oglivie, 310 N.W.2d 192, 195 (Iowa 1981),
Vv Sanders, 610 P.2a 633, 636 (Kan.
1980), vw , S80 P.2d 1341,
1342-1343 (Kan. 1978), State v Larson,
389 N.W.2d 872, 876 (Minn. 1986), v
, 261 N.W.2d 650, 655 (N.D.1978),
motion precludes the admission of the
evidence.19 Failure to file a required
affidavit may also result in preclusion
of the evidence.1
Since preclusion of even arguably
relevant evidence for failure to comply
with discovery rules does not offend the
Compulsory Process Clause, preclusion of
such evidence for failure to provide
proper notice or to file a timely motion
to admit the evidence should not be found
to be violative of the Confrontation
Clause.
While the remedy is severe, it would
be clearly appropriate in many cases. In
9. (con't.) State v Acre, 451 N.E.2d
802, 805 (Ohio 1983), ,
Duran, 886 F.2d 167, 168 n. 4, 169 (8t
i 875
Cir. 1989), rnited States v Provost,
F.2d 172, 177 (8th Cir. 1989).
10. People v McKenna, 585 P.2d 275,
513
279-280 (Colo. 1978), Wright v State,
A.2d 1310, 1313 (Del.Supr. 1986), State v
Williams, 580 P.2d 1341, 1342- 1343 (Kan.
1978), State v Salkil, 659 S.W.2d 330,
334 (Mo.App. 1983).
ll. State v Williams, 681 P.2d 660, 664
(Kan. 1984).
- 70 =
light of the fact that rape shield laws
provide an accused with ample opportunity
to make an offer of proof to test the
relevance and admissibility of the evi-
dence, the refusal or failure to exercise
the option is his and his alone.
Lastly, the preclusion remedy has
deterrent value. If it is widely under-
stood that evidence will be barred if the
procedural prerequisites are not met, a
defendant would be less likely to utilize
an “eleventh hour" defense which would
undergo an especially severe examination
by the court. In the absence of a suffi-
cient showing of "good cause" or that the
evidence was "newly discovered", the
likelihood that it was recently concocted
rises considerably.
III. THE INSTANT CASE.
The Respondent's conviction was
reversed by the Michigan Court of Appeals
based upon its conclusion that the notice
requirement of the rape shield statute
- 71 -
(MCL 750.5203(2); MSA 28.788(10)(2)] was
unconstitutional when applied to preclude
evidence of the defendant's prior sexual
conduct with the complainant:
"In People _v Williams, 95
raat? 1, 9-1ll; 289 N.W.2d
980),
863 ( rey —d_on_other
grounds, 416 Mich. 25, 330
N.W.2d 823
(1982), this Court
found the ten-day notice pro-
vision and any hearing require-
ment unconstitutional when
applied to preclude evidence of
specific instances of sexual
conduct between a complainant
and a defendant."
7 9 ARR
The Petitioner's application for
leave to appeal to the Michigan Supreme
Court noted that the evidence admitted at
trial revealed a prior intimate relation-
ship between the Respondent and the com-
plainant. Despite having granted leave
on the question of the constitutionality
of the notice requirement in People v
Williams, 330 N.W.2d 823 (Mich. 1982),
the application also emphasized the fact
that a majority of the Michigan Supreme
Court specifically stated that it was
- 72 -
unnecessary to resolve that issue as the
evidence which was sought to be intro-
duced was irrelevant (330 N.W.2d at 825).
After remand by the Supreme Court to
the Michigan Court of Appeals for the
purpose of determining whether "the trial
court's denial of the defendant's motion
to introduce evidence regarding past
sexual relations between him and the
complainant was harmless beyond a reason-
able doubt." [433 Mich 876-877 (1989)]},
the Court of Appeals again reversed the
Respondent's conviction and stated as
follows [Opinion of the Michigan Court of
Appeals (On Remand), Petition for Certio-
rari, pp. lla-l2a):
"As we noted in our previous
opinion, defendant and complain-
ant had a "boyfriend-girlfriend"
relationship over a considerable
period of time in which they saw
each other practically every
day. Their relationship experi-
enced difficulties only shortly
before the incident in estion.
Virtually all of the evidence in
this case consisted of complain-
ant's word against the word of
defendant. As this Court sug-
gested in People v Williams, 95
Mich App 1, 10; 289 NW2d 863
(1980), rev'd on oth grds, 416
- 973 -
Mich 25 (1982), the prior in-
stances of sexual relation be-
tween these individuals goes to
the issue of credibility. Since
the question of credibility was
central to this case, we cannot
say exclusion of defendant's
proposed testimony was harmless
peyond a reasonable doubt.
People v Robinson, 386 Mich 551,
563; 194 NW2d 709 (1972)."
A. REQUIRING NOTICE.
On the day of trial (seven months
after the Respondent's arraignment on the
information), defense covnsel made an
oral motion to admit evidence of the
prior sexual relations between the defen-
dant and complainant. Every procedural
rule governing the admission of such
evidence was broken - a fact pointed out
by the circuit court judge (R. 6) and
readily admitted by defense counsel (R.
3-5).
The only reason for failing to file
a proper and timely motion which counsel
offered the court was that she "was not
aware that (she) could have made it be-
cause Mr. Lucas had a different attorney.
In fact, (she) was appointed to this case
one week prior to trial initially when he
had his first attorney." (R. 5).
The circuit court record contains an
appearance filed by Respondent's retained
on October 25, 1984 (J. A. 2). As late
as November 14, 1984, his retained attor-
ney filed a motion to adjourn the trial
in order to conduct a polygraph examina-
tion (J. A. 2). An order bearing the
signature of the retained attorney is
contained in the court file.
The court file also notes an entry
on a "Case Inquiry" form for January 31,
1985 (J. A. 2)] assigning the matter for
trial and indicating the name of the
Respondent's newly-appointed attorney,
Gayle Fort Williams. An appearance filed
by Ms. Williams on February 8, 1985 as
well as an order granting an adjournment
of the trial (for the reason that counsel
had just been appointed) is also contain-
ed in the circuit court file (J. A. 2).
- 75 -
In order to have complied with the
notice provisions of [MCL 750.5204(2):;
MSA 28.788(10)(2)}) ("10 days -after the
arraignment on the information"), the
notice would have to have been filed by
November 4, 1984.
If the Respondent's original attor-
ney was still the attorney-of-record on
November 4, 1984, it would have been his
responsibility to file the notice. The
court records indicate that he was and,
since he was the attorney who conducted
an extensive cross-examination of the
complainant as well as a thorough exami-
nation of his client at the September i8,
1984 preliminary examination at which the
fact of their prior sexual relationship
was made a matter of record it cannot be
said that he was unaware of it or that it
may have been relevant to the claim of
consent. Nor can it be assumed that he
was ignorant of the statutory require-
ments.
If Respondent's appointed counsel
- 76 <
had not entered the case until sometime
after the November 4, 1984 cut-off date,
no explanation was ever offered to excuse
the failure to file a motion and seek an
in camera hearing at any time prior to
the trial date.
' In view of the pre-trial posture of
the case, there could be no claim that
the evidence was "newly discovered" (the
only exception set forth in the statute
for the failure to file a timely notice).
In view of the blatant and wholly
inexplicable failure to comply with the
statute (or even to seek a delayed hear-
ing on the matter), it cannot be said
that the court's refusal to “allow evi-
dence, testimony of their prior sexual
intercourse" (R. 3-4) was an abuse of
discretion.
Simply because the type of sexual
conduct which the defendant and complain-
ant had engaged in on previous occasions
during their relationship was brought out
at the preliminary examination, it cannot
- 77 «
be said that this fact alone dispensed
with the notice requirement or any of the
other procedural rules for admission of
the evidence or that the prosecution
thereby waived its right to enforce those
rules at trial.
As noted by the trial prosecutor (an
assistant prosecutor other than the one
who conducted the preliminary examina-
tion), the rights "referred to in our
Rape Shield Statute are rights that be-
long to the complaining witnesses in
these criminal sexual conduct cases.
They are not rights to be taken lightly
and even waived by prosecutors in trials
like this." (R. 5). As these rights are
intended to be personal to the victin,
the fact that the details of her prior
sexual activities came to light during a
pre-trial hearing simply does not imply
that the defendant has secured a right to
present such evidence at every subsequent
hearing.
Nor can it be assumed that the de-
- 78 -
fense will attempt to admit such evidence
at the trial itself. In preparing for
trial, defense counsel will necessarily
weigh the strengths and weaknesses of his
or her case and that of the prosecution.
As part of this process, a determination
will be made regarding which pieces of
evidence will be needed to present a
viable defense to the charge. If it is
necessary to elicit the details of speci-
fic acts of prior sexual intercourse
[e.g., “patterns of behavior" [People v
Perkins, 379 N.W.2d 390, 391 (Mich.
1986)], he may notify the court and move
for its admission. If such evidence is
deemed to be unnecessary, counsel may
make a conscious decision to avoid it at
trial - even though it may have been
brought forth at a previous hearing. In
short, unless the defense files a timely
notice and moves for its admission as
required by the rape shield law, the
prosecution cannot be presumed to know
that the defendant will attempt to uti-
- 79 -
lize the same evidence which may have
been presented at an earlier hearing.
The right to confrontation does not
entitle a defendant to expose a victim's
sexual past at every turn in the criminal
justice process without prior notice.
This is especially true where it is not
relevant to the defense asserted.
B. TESTING RELEVANCE.
The notice requirement is but the
first hurdle which the accused must over-
come in his quest to secure admission of
evidence of his prior sexual relations
with the complaining witness. An offer
of proof must be made which establishes,
to the satisfaction of the trial court,
that the evidence specifically relates to
a critical element of the defense raised.
This is true even where the defense is
consent and the evidence concerns prior
sexual activity between the accused and
the victim.
In the instant case, defense counsel
- 80 -
merely moved to admit “testimony concern-
ing prior sexual intercourse between the
defendant and the complainant." (R. 3).
Counsel did not indicate whether she
wanted to introduce the simple fact that
a previous sexual relationship existed or
whether she intended to elicit testimony
regarding specific instances of sexual
activity or the details of prior sexual
encounters. She also made no attempt to
explain how such evidence would be rele-
vant to the Respondent's defense to the
charges against hin. In short, defense
counsel failed to make a sufficient offer
of proof. Aside from the failure to
comply with the notice requirement, the
lack of an adequate offer of proof is
also a basis for preclusion./¢
12. E.g., People v McKenna, 585 P.2d
375, 279-280 (Colo. 1978) ("{Defendant]
never indicated, by offer of proof or
otherwise, what past sexual conduct by
the victim he hoped to prove, or how her
sexual history might be relevant to his
defense."); Vv , 513 A.2d
1310, 1313 (Del.Supr. 1986) ("[(E)ven
assuming that compliance with the statu-
- 81 -
In the instant case, the court of
appeals not only adopted an earlier deci-
sion which held that the notice provision
was unconstitutional but also found that
the in camera hearing procedure to test
the relevance of the evidence was an
unnecessary requirement. It did so by
relying upon the following language found
in People v Williams, 289 N.W.2d 863,
866-867 (Mich.App. 1980):
"... (T)he very nature of the
evidence sought to be presented,
i.e., prior instances of sexual
conduct between a complainant
and a codefendant is personal
between the parties. As such,
12. (con't.) tory procedure could be
excused in this case, the trial judge
concluded that the defendant had not
provides a sufficiently relevant factual
asis to permit the victim's credibility
to be attacked b introducing evidence of
previous sexual conduct.") ; Vv
, 377 N.W.2d 110, 117 (Neb. 1985)
("(I]n order that a victim's past consen-
sual sexual behavior with a defendant be
admitted as evidence relevant to a charge
of sexual assault, the defendant must, by
offer of proof at the in camera hearing,
adduce some evidence tending to prove a
defendant's claim that the victim con-
sented to the sexual act which is the
subject of the prosecuted charge against
the defendant.")
- 82 =
it does not involve a subject
matter that requires further
witnesses to develop. An in
camera hearing will necessaril
focus on a complainant's wor
against the word of a codefen-
dant. Requiring notice in this
situation, then, would serve no
useful purpose. There would be
no witnesses to investigate and,
thus, no necessity for prepara-
tion time." [ Vv , 408
N.W.2d 431, 431 (Mich. App.
1987).
To be sure, credibility is the key
factor for the jury or judge to determine
in the trial of a criminal matter. How-
ever, for evidence to be admissible (and,
therefore, be properly placed before the
fact-finder), relevance must first be
established. By relying upon the above-
cited statement in Williams, the court
completely ignored or overlooked the
primary and indispensable purpose which
is served by the in camera hearing proce-
dure; namely, -to determine whether even
“arguably” relevant evidence may be
excluded when it is shown to be more
prejudicial than probative and legally
irrelevant to the defense asserted.
~
Even if the Respondent had complied
with thie second procedural requirement
by filing "a written motion and offer of
proof" [pursuant to MCL 750.5203(2); MSA
28.788(10)(2)}, he would have then have
had to demonstrate legal relevance. As
aptly noted by the court in State v
Daniels, 512 A.2a 936, 938 (Conn.App.
1986):
"If the proffered testimo
not relevant to a asbarial Tease
in the case, the defendant's
right to confront hi
not affected." a
In lieu of granting the Petitioner's
application for leave to appeal following
the initial reversal of the Respondent's
conviction, the Michigan Supreme Court
remanded the case to the court of appeals
for a determination of whether the pre-
clusion of the evidence was nonetheless
"harmless beyond a reasonable doubt" [433
Mich 876-877 (1989)).
The court of appeals again reversed.
- 84 -
It found that "(v)irtually all of the
evidence in this case consisted of com-
plainant's word against the word of
defendant". As such, the court could not
find that preclusion of "prior instances
of sexual relations" was harmless beyond
a reasonable doubt because "the question
of credibility was central to this case."
[Opinion of the Michigan Court of Appeals
(On Remand), Petition for Certiorari, pp.
lla-l2a}.
Petitioner respectfully contends
that the court of appeals did not look
far enough.
While maintaining that the circuit
court properly excluded the evidence on
procedural grounds, Petitioner asserts
that the Respondent was not denied his
right to effective cross-examination so
as to violate his right of confrontation.
Respondent has not, and simply cannot,
show that his defense was in any way pre-
judiced by the exclusion of the evidence.
In this respect, the Petitioner's
Claim is more accurately one of "lack of
prejudice" (there being no error in the
exclusion of the evidence) rather than
one of “harmless error".
In People v LaLone, 437 N.W.2d 611
(Mich. 1989), the court held that the
exclusion of evidence of the victim's
sexual history did not violate either the
rape shield statute or the defendant's
Sixth Amendment right to confrontation.
Writing for a majority of the court on
this issue, Justice Archer noted that
evidence other than the complainant's
sexual history was presented from which
her bias could be inferred. As such, its
exclusion was "not constitutional error
violative of the defendant's Sixth Amend-
ment rights." (437 N.W.2d at 621). After
citing Delaware v Van Arsdall for the
proposition that the right to confronta-
tion ensures the “opportunity for effec-
tive cross-examination" (437 N.W.2d at
621), Justice Archer added:
"Unlike the defendant in Davis
(v. Alaska, 415 U.S. 308, 94
» O86 - 87 -
Ss.ct. 1105 (1974)], the trial
court's exclusion of the com-
plainant's sexual history left
the defendant with several
Similar claim of constitutional error,
the court in People v Smith, 340 N.W.2a
avenues to explore the complain-
ant's bias or motive to fabri-
cate." (437 N.W.2d at 621).
In State v Hamilton, 289 N.W.2d 470
(Minn. 1979), the defendant claimed that
he was denied his right to confrontation
by the trial. court's refusal to permit
him to question the complainant regarding
her previous sexual conduct. The court
rejected this contention by noting that
defense counsel conducted an extensive
cross-examination concerning the events
charged in the complaint, that the defen-
dant had ample opportunity to present his
defense “and, through his witnesses, to
raise the issue of the complainant's
prior sexual conduct as it relate fd) to
the issue of consent"; and, that the
prosecution did not deny the complain-
ant's prior sexual activity but only
questioned its relevance. (289 N.W.2d at
476). See also State v Larson, 389
N,W.2d 872 (Minn. 1986). Faced with a
855 (Mich.App. 1983) noted as follows:
"There is one final reas
why the trial court's refusal ee
allow the proposed cross-exami-
nation could not have been
reversible error;
4° e = ° = tL
= T) * r = = f ) : e
ant." 340 N.W.2d at 857
Sis added).
(empha=
In the instant case, the Respondent
was also afforded every Opportunity to
explore his past sexual relationship with
the complainant. The record of the trial
proceedings reveals quite unequivocally
that evidence of this relationship was
submitted to the fact-finder.
The Respondent waived his right to a
jury trial, electing instead to be tried
by the court (R. 6-8). Immediately prior
to the jury waiver, defense counsel re-
quested the court to grant an untimely
motion to allow testimony regarding the
complainant's prior sexual relationship
with the Respondent (R. 3-6). While the
circuit judge denied the request, the
motion in and of itself brought to the
attention of the trier-of-fact the infor-
mation that there had been a sexual rela-
tionship between the Respondent and the
complainant. -
The complainant, the Respondent, and
the complainant's mother testified that
there had been a "“boyfriend-girlfriend"
relationship (R. 10-13, 125, 164-166).
Through the Respondent's testimony,
it was shown that the complainant was
familial with the upstairs portion of his
home, including the bedroom (R. 168-169).
He testified that the complainant had
told him at some point before the events
of August 31, 1984 that she was pregnant
with his child. He testified that the
reason he hit her on the day in question
was because she told him that the child
was not his (R. 205-210). An even more
- 89 =
explicit indication to the trier-of-fact
that a prior sexual relationship had
existed came from the Respondent's state-
ment that he believed that he had con-
tracted gonorrhea from the complainant
(R. 182, 190-191).
It is, therefore, apparent that in
spite of the circuit court's denial of
the Respondent's belated motion, it was
well within the knowledge of the trier-
of-fact that he and the complainant had
been involved in a prior consensual sex-
ual relationship. Armed with this knowl-
edge, the circuit judge then weighed the
credibility of the witnesses and found
the Respondent guilty.
It cannot be said that the trier-of-
fact was deprived of any relevant evi-
dence due to the denial of the motion.
Nor can it be said that the Respondent
was in any way prevented from conducting
an effective cross-examination. Indeed,
the Respondent never indicated in what
manner any of the specific details of his
6
- 91 -
- 90 -
RELIEF
prior sexual encounters with the com-
inant would have been relevant to his 7
pres WHEREFORE, Petitioner requests this
eory of the case. : 7
uae rejudice to the Honorable Court to reverse the Michigan
If there was no p
Court of Appeals.
Respondent, there was no error. If there pp
was error, the facts of this case clearly
indicate that it was harmless beyond a Respectfully submitted,
JOHN D. O'HAIR
reasonable doubt. Prosecuting Attorney
County of =
TIM paelb A. ge,
Chief of Research,
Training and Appeals
Sele) Pr QztBrie/
DON W. ATKINS
Principal Attorney, Appeals
12th Floor, 1441 St. Antoine
Detroit, Michigan 48226
Phone: (313) 224-5794
Dated: December 28, 1990
TAB/DWA/mlw
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.