Amicus Curiae Brief — Michigan v. Lucas

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Iu the Supreme Court of the United States

OCTOBER TERM, 1990

STATE OF MICHIGAN, PETITIONER

Vv.

NOLAN K. Lucas

ON WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

SEAN CONNELLY

Attorney

Department of Justice

Washington, D.C. 20580

(202) 514-2217

7 AVAILABLE COP

QUESTION PRESENTED

Michigan’s rape-shield statute requires a defendant

who intends to offer evidence of the victim’s past sex-

ual conduct to give advance notice and make an offer

of proof regarding that evidence. The question pre-

sented is whether it violates the Confrontation Clause

to bar cross-examination of the victim about her prior

sexual conduct with the defendant as a sanction for

the defendant’s failure to comply with the statute’s

pretrial notice requirement.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ............. 1

Statement 2 NE ee 2

a cceonpucesnecnenseees = 7

Argument:

The Confrontation Clause is not violated by a rea-

sonable requirement that a defendant give pretrial

notice of his intention to cross-examine an alleged

rape victim about her prior sexual conduct with

the defendant... 10

A. The Sixth Aaundment oes not prohibit f proce-

dural rules that reasonably promote legitimate

interests in the criminal process __. Sd 10

B. The pretrial notice requirement of Michigan’s

rape-shield statute is a reasonable means of

protecting victim privacy | ee 14

C. The sanction of gresioding a line of cross-

examination may legitimately be imposed in a

particular case when a defendant has failed to

comply with a reasonable notice requirement 22

‘

Conclusion sila a 30

TABLE OF AUTHORITIES

Cases:

Chambers Vv. Mississippi, 410 U.S. 284 (1973)... 11, 12

Crane V. Kentucky, 476 U.S. 683 (1986) ...—--:10-11, 12

Davis v. Alaska, 415 U.S. 308 (1974) 13

Delaware V. Van Arsdall, 475 U.S. 673 (1986). 8, 11,

13, 22

Henry V. Mississippi, 379 U.S. 443 (1965). 12

Illinois V. Rodriquez, 110 8. Ct. 2793 (1990) 16

Maryland vy. Craig, 110 8. Ct. 3157 (1990) 11,12

Michigan Vv. Long, 463 U.S. 1032 (1983) 16

Morris Vv. Slappy, 461 U.S. 1 (1983) 200000000... .... 21, 26

Olden V. Kentucky, 488 U.S. 227 (1988). 13, 22

People Vv. Bennett, 116 Mich. App. 700, 323 N.W.2d

520 (1982) : = = ‘ 29

(11)

Cases—Continued : Page

People v. Hackett, 421 Mich. 338, 365 N.W.2d 120

SY ssdinnsimmcicmneliceaieia da ra es 18-19

People v. LaLone, 432 Mich. 103, 437 N.W.2d 611

SUED sinsesnicctinciiiteinicaatenistariiiaiiatindaaa sip tiaeie rated hate 17

People v. Merritt, 396 Mich. 67, 238 N.W.2d 31

Deceit hi a as 29

People v. Perkins, 424 Mich. 302, 379 N.W.2d 390

I a tecsialna ie a eee 19

People Vv. Smith, 128 Mich. App. 361, 340 N.W.2d

RINE SE SER Sia Ae ma a IS sc 20, 29

People v. Williams, 95 Mich. App. 1, 289 N.W.2d

863 (1980), rev’d, 416 Mich. 25, 330 N.W.2d

I ie 6, 7, 15, 16, 19, 20, 21, 25

People v. Zysk, 149 Mich. App. 452, 386 N.W.2d

I SUID . srtehuiinpetepicndbsnclomatenecbieenateh hide taht 21

Pointer Vv. Texas, 380 U.S. 400 (1965) cere 11

Rock v. Arkansas, 483 U.S. 44 (1987) 8, 12, 13

State v. Hagen, 391 N.W.2d 888 (Minn. Ct. App.

TIS ARE eS ESS NL ES ee 20

State v. Stellwagen, 232 Kan. 744, 659 P.2d 167

(1983) ......... mnccpiieeniitleiailadai i aaa 20

Strickland v. Washington, 466 US. 668 (1984). 10

Taylor V. Illinois, 484 U.S. 400 (1988) _....9, 10, 11, 14,

23, 24, 27

The Florida Star v. B.J.F., 109 S. Ct. 2603

RIEU <acentasceiduniecinesliahabaheatasiahasieaiirnbiideietci eta beanie 21

Ungar Vv. Sarafite, 376 U.S. 575 (1964) as 26

United States v. Nobles, 422 U.S. 225 (1975) i 23

Wardius Vv. Oregon, 412 U.S. 470 (1973) 14

Washington Vv. Texas, 388 U.S. 14 (1967) 10, 12, 13

Williams v. Florida, 399 U:S. 78 (1970) _............ 14

Constitution, statutes and rules:

U.S. Const. :

Amend. VI ......... a 8, 9, 10, 12, 23, 24, 27

Compulsory Process Clause ..........._.12, 22, 24

Confrontation Clause 8, 11, 15, 24, 25, 27

Amend. XIV... seniccissaiejaiiasialaicaiasheeih ate ee 11

Statutes and rules—Continued: Page

Mich. Comp. Laws Ann. (West Supp. 1990) :

ERE ES, ces oe 3

RR RE atc ARN a Aen OR 2

§ 750.520j (1) .............. stssdaiasteadlina ciidatinietaeieienlnct 15

§ 750.520j (2) ......... cco cuieesiiihtaamesiesiniduaniomanniadiia —

Fed. R. Evid.:

a ameemmanebiinenabadion 1, 2, 8, 17, 18

ae cial 1

I a eneneaidinn:. “ae

EERO maser slit here oa eae 21

Mich. Ct. R.:

Rule 6.104 —.............. SEE LMI He Pawar me eT OS 26

IRR SS EER aaa AD Pe Ie REN ERAN OR 26

Rule 6.110. icpinipecmdbcanMinalatareik it ciate 26

Rule 6.110(C) ee Le ee een ay MO AE a Mit ae 26

Rule 6.112 SEEEEE CE CE NT 27

| SESE oo AOE Se oP NEO a 27

Miscellaneous:

Berger, Man's Trial, Woman's Tribulation: Rape

Cases in the Courtroom, T7 Colum. L. Rev. 1

(1977) = eR Fara Maoist

124 Cong. Rec. (1978) :

p. 34,913 sos usiaicameneaaialeasuambacisanatanediaaceah lead 17, 18

p. 36,256 TATE LEE cP ERO OT _ 17,18

Galvin, Shielding Rape Victims in the State and

Federal Courts: A Proposal for the Second

Decade, 70 Minn. L. Rev. 763 (1986) —............. 17

Nat’l Inst. of Law Enforcement and Crim. Jus-

tice, Foyible Rape: An Analysis of Legal Is-

sues (1 ) Zl “Thee 18

Note, Michigan's Criminal Se sual Assault Lew,

U. Mich. J.L. Ref. 217 (1974) ................ 19

Tanford & Bocchino, Rape Victim Shield Laws

and the Sixth Amendment, 128 U. Pa. L. Rev.

544 (1980) .............. 17

Westen, Confrontation and Compulsory ‘Process:

A Unified Theory of Evidence for Criminal

Cases, 91 Harv. L. Rev. 567 (1978) ais 24

23 C. Wright & K. Graham, Federal Practice and

Procedure (1980 & Supp. 1990) 0... 17, 19

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-149

STATE OF MICHIGAN, PETITIONER

NOLAN K. LUCAS

ON WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The Federal Rules of Evidence contain a rape-

shield provision generally similar to the provision at

issue in this case. The federal rule, Fed. R. Evid.

412, requires a defendant who intends to offer evi-

dence of specific instances of the victim’s past sexual

conduct to give advance notice of that intention 15

days before trial. Fed. R. Evid. 412(c)(1). Follow-

ing the filing of the notice and an accompanying of-

fer of proof, the court must conduct an in-chambers

hearing to determine whether the evidence is acdmis-

sible. Fed. Rt. Evid. 412(¢c)(2). Because of the sim-

ilarity of the federal notice requirement to the re-

quirement at issue in this case, the Court’s analysis

(1)

here is likely to affect federal sexual abuse cases in-

volving Rule 412.

STATEMENT

1. a. Michigan’s rape-shield statute, Mich. Comp.

Laws Ann. § 750.520} (West Supp. 1990), requires a

defendant who proposes to offer evidence of the vic-

tim’s past sexual conduct to file a written motion and

offer of proof “within 10 days after the arraignment

on the information.” The trial court may then hold

an in camera hearing to determine whether the evi-

dence is admissible. If new information is discovered

during the trial that renders the sexual-conduct evi-

dence atlmissible, an in camera hearing may be held

at that time.’

‘The statute, Mich. Comp. Laws Ann. § 750.520) (West

Supp. 1990), 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 victim’s sexual conduct

shall not be admitted under sections 520b to 520¢ unless

and only to the extent that the judge finds that the follow-

ing proposed evidence is material to a fact at issue in the

case and that its inflammatory or prejudicial nature does

not outweigh its provative 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 proposes to offer evidence de-

scribed in subsection (1) (a) or (b), the defendant within

10 days after the arraignment on the information shall

file a written motion and offer of 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

b. Respondent was charged with two counts of

criminal sexual conduct, in violation of Mich. Comp.

Laws Ann. § 750.520d (West Supp. 1990), and was

tried before a judge of the Circuit Court of Wayne

County, Michigan. On the first day of trial, respond-

ent’s counsel requested that the court allow, “through-

out this trial, testimony concerning prior sexual inter-

course between the defendant and the complainam,

even though I know it goes against the Statute.” Tr.

3. Counsel explained that she had not been appointed

until after the time for filing a motion under the

rape-shield statute had expired. /bid. The prosecutor

objected, citing the rape-shield statute and explaining

that its procedures require that “a motion has to be

filed * * * within 10 days of the arraignment on the

information.” Tr. 4. The prosecutor also noted that

respondent had been represented by different counsel

at the preliminary examination and the arraignment

on the information, but that respondent’s present

counsel had been appointed weil before the trial. /bid.

Respondent’s counsel acknowledged the untimeli-

ness of her motion, but stated that respondent “has

rights too, and that is the right to defend himself as

vigorously as he possibly can. * * * Much of [re-

spondent’s] defense * * * centers around the sexual

intercourse that he did have in previous months prior

to the day of the incident.” Tr. 5. When the trial

judge asked respondent’s counsel why the motion was

not made earlier, she replied that “I was not aware

that I could have made it because [respondent] had a

different attorney. In fact, I was appointed to this

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 evi-

dence is admissible under subsection (1).

case one week prior to trial initially when he had his

first attorney.” Jbid.*

After reviewing the Michigan rape-shield statute,

the court denied respondent’s motion. The court ex-

plained that “[n]one of the requirements set forth in

[the statute] have been complied with.” Tr. 6. The

court noted that not only had respondent failed to give

timely notice, but “the Court should have [had] an

in camera hearing on the evidence, which has not

been done.” Jbid. Accordingly, the court ruled that

unless new information was discovered during the

trial, evidence covered by the rape-shield statute

would not be admitted. /bid.

2. At trial, the alleged victim, Wanda Brown, gave

the following account: Prior to August 31, 1984, re-

spondent had been involved in a boyfriend-girlfriend

relationship with Brown for approximately six to

seven months. In mid-August, Brown and respondent

became estranged. Brown stopped dating respondent

because of concerns about aspects of his personality

and behavior. Pet. App. 2a; Tr. 66, 99.

On the evening of August 31, at about 10:30 p.m.,

Brown was walking from her house to a-nearby gas

station to purchase cigarettes. On the way, she passed

respondent’s house. Respondent approached her, bran-

dished a pocket knife, grabbed her by the arm, and

forced her into his house. Inside the house, respondent

beat her, held his knife to her throat, and made her

* Although the transcript is eonfused on the issue of when

respondent’s trial counsel was appointed, respondent’s brief

in opposition in this Court states (at 3) that respondent was

initially represented by retained counsel, who withdrew on

November 8, 1984, 14 days after the arraignment on the

information. The trial judge then appointed counsel for

respondent on February 8, 1985—more than three months

before the beginning of trial on May 14, 1985.

undress. Respondent then forced Brown to engage in

several nonconsensual sexual acts. Brown was locked

into respondent’s house with him until approximately

10:00 p.m. on September 1, 1984. She arrived home

with a swollen, bruised, and almost-closed right eye.

Pet. App. 2a; Tr. 13-18, 22-23, 26-34, 36-39, 47-49."

Respondent, the only witness for the defense, painted

a different picture of the events of August 31, 1984.

According to respondent, he and Brown had been in-

volved in a close relationship since April and had seri-

ously contemplated marriage. Respondent acknowl-

edged that their relationship was “shaky” as of Au-

gust 31, and that he and Brown had been estranged

for about two weeks as of that date.‘ He testified,

however, that Brown had engaged in voluntary, con-

*In cross-examining Brown, respondent’s counsel asked

whether Brown frequented any particular room in respond-

ent’s house during the time they dated. On the prosecutor’s

objection, the trial judge reiterated that he did not want

questioning that “will by inference indicate prior sexual con-

tact.” Tr. 63. Counsel respected that limitation and did not

attempt to elicit testimony about specific instances of sexual

conduct involving Brown and respondent. Evidence that

‘ Brown and respondent had previously had a sexual relation-

ship was elicited during respondent’s testimony, however.

See note 4, infra.

‘Respondent stated that his estrangement from Brown

stemmed in part from his belief that he had contracted

gonorrhea from her. Tr. 182. The prosecutor objected to this

testimony, citing the court’s “pretrial ruling that none of this

area could be touched on.” Tr. 183. The court, however, per-

mitted respondent to attempt to lay a foundation for that line

of questioning by establishing that respondent had peen diag-

nosed as having gonorrhea. Tr. 185. The questioning was

inconclusive, Tr. 185-193, and respondent did not pursue it.

Respondent later testified that he had been under the impres-

sion that Brown was carrying his child, but that Brown had

told him otherwise on August 31. Tr. 205-206.

sensual sex with him several times during the 24

hours that Brown was in his house, and that he had

not applied force to compel Brown to have sex with

him. Pet. App. 2a; Tr. 164, 167-168, 180-181.

The trial judge credited Brown’s testimony, Tr.

263-264, and found respondent guilty on two counts

of criminal sexual conduct. Although reducing the

charge from a first to a third degree offense, Tr. 266,

the judge concluded that respondent had used force

and coercion to compel Brown to engage in sexual

acts with him. Tr. 264, 266.

3. The Michigan Court of Appeals reversed, find-

ing that the exclusion of evidence about respondent’s

prior sexual relationship with Brown violated his

constitutional rights. In so holding, the court focused

its attention exclusively on the validity of the pre-

trial notice-and-hearing requirements of the rape-shield

statute. In People v. Williams, 95 Mich. App. 1, 289

N.W.2d 863 (1980), rev’d on other grounds, 416

Mich. 25, 330 N.W.2d 823 (1982), the court had

found those requirements “unconstitutional when ap-

plied to preclude evidence of specific instances of sex-

ual conduct between a complainant and a defendant.”

Pet. App. 3a. The court reaffirmed that ruling in

this case. Jd. at 6a.

The court explained that the purpose of the notice

requirement is to allow the prosecutor time before

trial to investigate the alleged prior sexual conduct

by the victim. That rationale, the court indicated,

“loses its logical underpinnings” as applied to sexual

conduct between the defendant and the complainant;

because the relationship is “personal between the par-

* Respondent acknowledged slapping Brown on one occa-

sion, but he testified that that occurred after Brown had

taunted him by stating that she was pregnant by one “Ricky,”

and had slapped him first. Tr. 206.

ties,” additional witnesses and preparation time

would not be required. Pet. App. 3a, 4a. Moreover,

the court added, an in camera hearing with respect

to such evidence was neither necessary nor appro-

priate because it would “necessarily focus on a com-

plainant’s word against the word of a []defendant,”

ibid.; the court had found in Williams that such cred-

ibility issues are properly left to the ultimate fact-

finder, rather than determined by the judge prior to

trial as an issue of admissibility. 95 Mich. App. at

9-10, 289 N.W.2d at 866. After concluding that the

evidence had improperly been excluded for violation

of the notice requirement, the court found that the

evidence satisfied traditional standards for admissi-

bility. Pet. App. 7a. Accordingly, the court set aside

respondent’s conviction. bid.

4. On the State’s application for leave to appeal,

the Michigan Supreme Court remanded the case for

the court of appeals to determine whether the trial

court’s exclusion of the evidence was “harmless be-

yond a reasonable doubt.” Pet. App. 8a-9a. On re-

mand, the court of appeals found that, because the

evidence of previous sexual relations went to credibil-

ity, and because “[v]irtually all of the evidence in

this case consisted of complainant’s word aghinst the

word of [respondent],” exclusion of the evidence was

not harmless beyond a reasonable doubt. /d. at 1la-

12a. The Michigan Supreme Court denied the State’s

application for leave to appeal. Pet. App. 13a.

SUMMARY OF ARGUMENT

ongress and the legislatures of many States, in-

cluding Michigan, have enacted rape-shield statutes

to prevent rape victims from being further victim-

ized in court through harassing and largely irrele-

vant cross-examination regarding their prior sexual

behavior. A common feature of such statutes is the

establishment of procedures for litigating evidentiary

issues before trial in a manner that protects the vic-

tims’ privacy. The Michigan Court of Appeals in-

correctly held that, when the victim’s prior sexual

conduct involves an alleged relationship with the de-

fendant, the Sixth Amendment forbids a State from

imposing a pretrial notice requirement as a condi-

tion of introducing such evidence.

The Confrontation Clause does not give criminal

defendants an unrestricted right of cross-examina-

tion. Trial courts “retain wide latitude insofar as

the Confrontation Clause is concerned to impose rea-

sonable limits on * * * cross-examination based on

concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety,

or interrogation that is repetitive or only marginally

relevant.” Delaware vy. Van Arsdall, 475 U.S. 673,

679 (1986). More generally, procedural and eviden-

tiary restrictions on the defendant’s right to present

evidence are valid unless “arbitrary or disproportion-

ate to the purposes they are designed to serve.” Rock

v. Arkansas, 483 U.S. 44, 55-56 (1987). That con-

sideration applies with special force to advance no-

tice rules that do not absolutely restrict a defendant’s

right to offer evidence, but merely condition that

right on compliance with established procedures.

The Michigan statute at issue here, like its state

counterparts and Fed. R. Evid. 412, represents a

valid legislative determination that rape victims, who

already have undergone severe trauma, deserve

heightened protection against being subjected to un-

necessary further trauma in the courtroom. There is

no merit to the court of appeals’ holding that a pre-

trial notice requirement serves “no useful purpose”

where the alleged prior sexual relationship involves

the defendant and the victim. In some cases, a court

will be able to determine in advance of trial that evi-

dence of the defendant’s prior sexual relationship

with the victim is inadmissible, thereby sparing the

vietim the humiliation of a public, midtrial hearing

on the admissibility of that evidence. And even if the

evidence of a prior sexual relationship between the

defendant and the complainant is not excluded alto-

gether, the notice-and-hearing procedure allows the

trial court to fashion appropriate limits on the scope

of the inquiry permitted.

It follows from the constitutional validity of an

advance-notice requirement that there will be cases

where preclusion of evidence is an appropriate sanc-

tion for a defendant’s failure to comply with the

statute. See Taylor v. Illinois, 484 U.S. 400, 410-416

(1988). But because the denial of such cross-

examination may, in a particular case, seriously im-

pede the defendant in presenting his defense, the

Sixth Amendment requires a careful weighing of in-

terests before a trial court imposes that sanction.

The Michigan reviewing courts did not address the

issue whether the trial court properly exercised its

discretion in limiting respondent’s proposed cross-

examination in this case. Accordingly, the case

should be remanded for the state courts to review

that issue in the first instance.

ARGUMENT

THE CONFRONTATION CLAUSE IS NOT VIOLATED

BY A REASONABLE REQUIREMENT THAT A DE-

FENDANT GIVE PRETRIAL NOTICE OF HIS IN-

TENTION TO CROSS-EXAMINE AN ALLEGED RAPE

VICTIM ABOUT HER PRIOR SEXUAL CONDUCT

WITH THE DEFENDANT

A. The Sixth Amendment Does Not Prohibit Procedural

Rules That Reasonably Promote Legitimate Intcrests

In The Criminal Process

1. The central mission of the Sixth Amendment is

to guarantee that the defendant in a criminal case

has a fair opportunity to present his version of the

facts so that the factfinder “may decide where the

truth lies.” Washington v. Texas, 388 U.S. 14, 19

(1967). By protecting the defendant’s right to con-

front the witnesses against him, to present the testi-

mony of his own witnesses, and to enjoy the assist-

ance of counsel, the Sixth Amendment spells out “the

basic elements of a fair trial.” Strickland vy. Wash-

ington, 466 U.S. 668, 684-685 (1984); Crane v. Ken-

tucky, 476 U.S. 683, 690 (1986).

The defendant’s opportunity to present his version

of the facts, however, is necessarily qualified by other

legitimate interests in the criminal trial process. The

Court has recognized that a defendant “does not have

an unfettered right to offer testimony that is incom-

petent, privileged, or otherwise inadmissible under

standard rules of evidence.” Taylor vy. Illinois, 484

U.S. 400, 410 (1988); Washington’ v. Texas, 388 U.S.

at 23 n.21. Rather, evidence may be excluded

“through the application of evidentiary rules that

themselves serve the interests of fairness and relia-

bility—even if the defendant would prefer to see that

evidence admitted.” Crane vy. Kentucky, 476 U.S. 683,

690 (1986). Procedural rules governing the mode

and presentation of proof, the regulation of objec-

tions, and the admissibility of evidence are indis-

pensable to the orderly conduct of a criminal trial.

Without an established set of rules, participants in a

criminal trial would be unable to engage in rudimen-

tary planning and meaningful presentation of their

cases, courts would be unable to administer trials

fairly and even-handedly, and “[t]he trial process

would be a shambles.” Taylor, 484 U.S. at 411.

The Confrontation Clause creates no exception to

these principles.” Although the right to confront and

to cross-examine witnesses plays a critical role in

assuring the reliability of evidence adduced at a

criminal trial, see Maryland y. Craig, 110 S. Ct.

3157, 3163 (1990), that right “is not absolute and

may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.”

Chambers v. Mississippi, 410 U.S, 284, 295 (1973).

Because the Confrontation Clause must “be inter-

preted in the context of the necessities of trial and

the adversary process,” Maryland vy. Craig, 110 8. Ct.

at 3166, “trial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose rea-

sonable limits on * * * cross-examination based on

eoncerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety,

or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986).

®“ The Confrontation Clause of the Sixth Amendment, made

applicable to the States through the Fourteenth Amendment,

Pointer Vv. Texas, 389 U.S. 400 (1965), provides that “[i]n

all criminal prosecutions, the accused shal] enjoy the right

* * * to be confronted with the witnesses against him.”

2. Procedural requirements that restrict the de-

fendant’s opportunity to present evidence are consti-

tutionally suspect only when they are arbitrary or

(lisproportionate to the legitimate interests they are

designed to serve. See Rock vy. Arkansas, 483 U.S.

44, 55-56 (1987); ef. Henry v. Mississippi, 379 U.S.

443, 448-449 (1965). The Court has articulated this

principle in a variety of contexts.’ In Chambers v.

Mississippi, supra, the defendant in a murder trial

Was prevented from introducing evidence of another

person’s confession to the crime because of a state

“voucher” rule, which precluded the defendant from

cross-examining the witness after he recanted his con-

fession, and a state hearsay rule, which precluded the

testimony of individuals who had heard the witness’s

out-of-court confessions. Noting that the State nei-

ther sought “to defend the [voucher] rule,” nor “ex-

plainfed] its underlying rationale,” 410 U.S. at 297,

the Court concluded that the voucher and hearsay

rules in tandem denied the defendant an adequate

opportunity to present his defense. The Court ex-

plained that procedural rules may “not be applied

mechanistically to defeat the ends of justice.” Jd. at

302.

The Court employed a similar approach in constru-

ing the Compulsory Process Clause in Washington v.

Texas, supra. There, a state rule prohibited persons

charged as participants in the same crime from testi-

fying, in certain circumstances, in behalf of other

7 Although the rights provided by the Sixth Amendment

offer distinct protections, the Court has attempted to formu-

late consistent standards in accommodating those rights

within the context of the trial process, and in determining

when limitations on those rights have become excessive and

impermissible. See Maryland v. Craig, 110 8S. Ct. at 3166;

Crane V. Kentucky, 476 U.S. at 690.

participants. Condemning the rule as “arbitrarily”

denying the defendant the opportunity to present rele-

vant and material testimony, the Court concluded

that the defendant’s compulsory process rights were

violated. 388 U.S. at 23.

More recently, in Rock v. Arkansas, supra, the

Court distilled from its prior cases the formulation

that “the right to present relevant testimony is not

without limitation,” but restrictions on that right

“may not be arbitrary or disproportionate to the pur-

poses they are designed to serve.” 483 U.S. at 55-56.

Applying that principle, the Court invalidated a

blanket prohibition on testimony by a defendant as

to facts he recalled after undergoing hypnosis, be-

cause the ban transgressed reasonable limits and con-

stituted an “arbitrary restriction on the right to tes-

tify.” Jd. at 61."

* The Court has expressed a similar view in finding, in

particular cases, that the defendant’s opportunity to mount a

defense may be infringed by arbitrary trial rulings denying

material cross-examination. See Olden v. Kentucky, 488 U.S.

227, 232 (1988) (per curiam) (trial court’s restriction on

cross-examination of an alleged rape victim about her rela-

tionship with another man based on “[s]peculation as to the

effect of jurors’ racial biases” was “beyond reason” when the

relationship gave the victim a possible w motive to fabricate

a claim of rape); Delaware v. Van Arsdall, 475 U.S. at 679-

681 (defendant's right violated when he was not permitted to

establish that prosecution witness agreed to testify in ex-

change for having charges against him dropped; trial court

had excluded the evidence as more prejudicial than proba-

tive). A confrontation vidation may also occur where the

State asserts a legitimate interest in preserving the confiden-

tiality of certain information, but not a sufficient interest to

outweigh the defendant’s right to expose a witness’s possible

bias. Davis v. Alaska, 415 U.S. 308, 319 (1974) (finding in-

valid a restriction on cross-examination that would have ex-

posed a witness’s juvenile record, which could be relevant to

the defendant’s claim of bias).

3. The principle that procedural rules designed to

promote the integrity of the trial are valid, unless

arbitrarily applied to thwart a fair presentation of

the facts, applies with special force to rules that do

not absolutely restrict a defendant’s right to offer

evidence, but merely condition the right on compli-

ance with established procedures. This Court has

held that rules requiring advance notice of antici-

pated trial evidence, such as alibi evidence, are not

only constitutional, Williams v. Florida, 399 U.S. 78

(1970) (upholding reciprocal notice-of-alibi statute ),

but also “salutary development[s]” when applied in

a fair and even-handed manner. Wardius v. Oregon,

412 U.S. 470, 474 (1973); see Taylor v. Illinois, 484

U.S. 400, 411 (1988) (rule “provid[ing] for pretrial

discovery of an opponent’s witnesses serve the same

high purpose” as rules requiring advance notice of

anticipated trial evidence). Such otherwise commend-

able rules become arbitrary and “fundamentally un-

fair’ only when applied in a one-sided manner that

undercuts the claimed government interest in ensur-

ing trial fairness. See Wardius, 412 U.S. at 475 (in-

validating non-reciprocal notice-of-alibi statute).

B. The Pretrial Notice Requirement of Michigan’s Rape-

Shield Statute Is A Reasonable Means Of Protecting

Victim Privacy

Michigan’s rape-shield statute does not require the

exclusion of all testimony about an alleged rape vic-

tim’s prior sexual conduct with the defendant. In-

deed, the statute expressly authorizes trial judges to

admit such evidence. What the statute does require

is that the defendant follow specific procedures to ob-

tain a ruling on the admissibility of the evidence.

The defendant must file a written motion and offer

of proof ten days after arraignment indicating his

intention to offer the sexual-conduct evidence. The

trial judge then may order an in camera hearing to

determine its admissibility. The evidence is admissi-

ble if and to the extent the judge determines that the

evidence is material to a fact in issue, and that its

probative value is not outweighed by its inflammatory

or prejudicial effect. Mich. Comp. Laws Ann.

§ 750.520j}(2) (West Supp. 1990).°

The Michigan Court of Appeals concluded that, as

applied to sexual ecnduct between the defendant and

the alleged victim, the notice-and-hearing requirement

violates the Confrontation Clause. The court rested

that holding solely on the reasoning articulated in

People v. Williams, supra, which made two criticisms

of the notice-and-hearing provision.” Declaring that

the purpose of the notice provision is to bolster the

prosecutor’s ability to challenge sexual-conduct evi-

dence at trial, Williams found that purpose irrele-

vant to prior sexual conduct between the defendant

and the victim; unlike in the case of an alibi defense,

the court thought that additional witnesses and in-

vestigation are not needed for the prosecutor to pre-

pare his case. Williams further stated that an ad-

* Although the statute puts substantive restrictions on the

use of evidence of prior sexual conduct by barring the use of

reputation evidence and by limiting the admissibility of spe-

cific instances of sexual conduct with persons other than the

defendant, Mich. Comp. Laws Ann. § 750.520j (1) (West Supp.

1990), those restrictiv..s were not applied to respondent. This

case concerns the procedures mandated by the statute, not

the statute’s substantive policy judgments about categories of

evidence that are inadmissible in sexual assault prosecutions.

The Williams court acknowledged the validity of the

notice requirement as applied to “sexual conduct between a

complainant and third persons.” 95 Mich. App. at 10, 289

N.W.2d at 866.

missibility determination regarding prior sexual con-

duct between the defendant and the victim “would

necessarily break down into a consideration of the

complainant’s word against the defendant’s word,”

thereby “usurp[ing]” the function of the trier of fact

in determining the truth. 95 Mich. App. at 9-10, 289

N.W.2d at 866. In our view, the court of appeals’

logic is untenable."

The court’s opinion that “no useful purpose” is

served by the advance-notice requirement where the

alleged conduct involves the defendant and complain-

ant, Pet. App. 4a, is flawed on several levels. Even

as to the purpose of the notice requirement identified

by the court—to improve the prosecutor’s ability to

respond to the defendant’s claims—the notice require-

ment would serve a valid function. Regardless of

whether any eyewitness actually observed the parties

engaged in the act of sex, persons who know the par-

ties would certainly be able to offer circumstantial

evidence (e.g., admissions, observations of the parties’

public conduct toward each other) tending to prove

or disprove a prior sexual relationship and shedding

light on the defendant’s claims as to its duration and

scope.

1! Respondent’s contention (Br. in Opp. 9) that the decision

below rests on an adequate and independent state ground is

incorrect. Williams is the central Michigan precedent under-

pinning the judgment of the court of appeals, Pet. App. 3a-

6a, and it rests squarely on federal law. See 95 Mich. App. at

5, 289 N.W.2d at 864. There is no “plain statement” in the

decision below (or in Williams) that the principles requiring

the reversal of respondent’s conviction derive from state law.

See Michigan v. Long, 463 U.S. 1032 (1983); Jllinois V.

Rodriguez, 1108. Ct. 2793, 2798 (1990).

More fundamentally, the essential purpose of the

notice-and-hearing procedure is to protect rape vic-

tims against unnecessary harassment and invasion of

privacy. The Michigan statute, enacted in 1974, was

the first rape-shield statute in the Nation; currently,

rape-shield statutes have been enacted by nearly every

State and by Congress. These statutes reflect a

widely shared legislative judgment that the tradi-

tionally open-ended cross-examination of rape victims

about their prior sexual history needlessly degrades

victims, introduces irrelevant and prejudicial evi-

dence, invites the jury to make moral judgments

about the victims’ character, and ultimstely makes

the trial experience so humiliating for victims as to

discourage the reporting of rape.”

An integral part of the legislative protection of

rape victims is the requirement of advance notice fol-

'? The background of Michigan’s statute is traced in People

Vv. LaLone, 432 Mich. 108, 123-125, 487 N.W.2d 611, 619-620

(1989). For discussions of the genesis of rape-shield stat-

utes, their purposes, and their constitutional implications, see

Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in

the Courtroom, 77 Colum. L. Rev. 1 (1977); Galvin, Shielding

Rape Victims in the State and Federal Courts: A Proposal

for the Second Decade, 70 Minn. L. Rev. 763 (1986); Nat’l

Inst. of Law Enforcement and (rim. Justice, Forcible Rape:

An Analysis of Legal Issues (19§8); 23 C. Wright & K. Gra-

ham, Federal Practice and Procedure §$§ 5381-5393 (1980 &

Supp. 1990). The purposes of Fed. R. Evid. 412 are explicated

in the debate accompanying the enactment of the rule. See

124 Cong. Rec. 36,256 (1978) (remarks of Sen. Biden) ; id. at

34,913 (remarks of Reps. Mann and Holtzman). Although

Michigan's procedural requirements are not universally found

in rape-shield statutes, “[m]Jost rape victim shield laws re-

quire notice and a pretrial hearing before the defense may

elicit sexual history testimony at trial.” Tanford & Bocchino,

Rape Victim Shield Laws and the Sixth Amendment, 128 U.

Pa. L. Rev. 544,577 (1980),

lowed by an in camera hearing on the admissibility

of sexual-history evidence. Under both Michigan and

federal law, advance notice is a necessary prerequi-

site to the in camera hearing at which admissibility

is determined. Fed. R. Evid. 412(¢)(2); Mich.

Comp. Laws Ann. § 750.520j(2) (West Supp. 1990).

The notice requirement prevents surprise to

the prosecutor, the victim, and the court. The

prosecutor can weigh the evidence and deter-

mine whether or not he will object to its admis-

sion, confer with the victim on its truthfulness,

and organize legal argument to oppose it if that

is the chosen strategy. The notice requirement

also signals the court of the importance of the

issue since some judges have tended to assume

the relevancy of prior sexual conduct. * * *

The main purpose of the private hearing is to

protect the victim from the embarrassment

which might occur if the details of her sexual

history were revealed and debated in public.

Quite possibly the evidence will be ruled inad-

missible and the public may never know about

these facts. * * * If the evidence is ruled to be

admissible, then, of course, it would be presented

in the public trial.

Nat’l Inst. of Law Enforcement and Crim. Justice,

Forcible Rape: An Analysis of Legal Issues 26-27

(1978). See 124 Cong. Rec. 36,256 (1978) (re-

marks of Sen. Biden) (noting that Fed. R. Evid. 412

“establish[es] a special in camera procedure whereby

the question of admissibility could be litigated with-

out harm to the privacy rights of the victim or the

constitutional rights of the defendant”); id. at

34,913 (remarks of Rep. Mann) (in camera hearing

“protects the privacy of the rape victim in those in-

stances when the court finds that evidence is inad-

missible’”’);: People v. Hackett, 421 Mich. 338, 350,

365 N.W.2d 120, 125 (1984) (“A hearing held out-

side the presence of the jury to determine admissibil-

ity promotes the state’s interests in protecting the

privacy rights of the alleged rape victim while at the

same time safeguards the defendant’s right to a fair

trial.”). Only if notice is given before trial can the

special in camera hearing occur without delaying and

interrupting the trial itself."

While evidence of prior sexual conduct between the

victim and the defendant may be relevant in many

cases for the purpose of showing consent or bias,’ the

'S Although the Michigan Court of Appeals did not describe

the protection of victim privacy as one of the purposes of the

notice-and-hearing procedure, the Michigan Supreme Court

has made it clear that protection of privacy is one of that

provision’s purposes. People v. Hackett, supra; cf. People v.

Williams, 416 Mich. at 47-48, 330 N.W.2d at 832 (Kavanagh,

J., concurring) (“The notice requirement serves the purpose

of ensuring that a victim’s sexual past will not be exposed to

public scrutiny without an in camera determination that such

evidence is more probative than prejudicial.”). Moreover, by

making notice a necessary prelude to an in camera hearing,

the statute on its face discloses a purpose to do more than

just facilitate trial preparation. See also, Note, Michigan’s

Criminal Sexual Assault Law, 8 U. Mich. J.L. Ref. 217 (1974)

(describing overall revision of Michigan’s rape laws in 1974,

including enactment of the shield provision, as part of a pro-

gram to protect victim privacy).

Because the essential purpose of the notice-and-hearing

procedure is to protect victim privacy, and not to facilitate

pretrial discovery, the absence of “reciprocity” doés not un-

dermine the validity of the provision. See Berger, supra, at

80 (noting the difficulty of articulating a sense in which the

provision could be reciprocal) ; 23 C. Wright & K. Graham,

supra, § 5390, at 617 (same).

'" See, e.g., People v. Perkins, 424 Mich. 302, 379 N.W.2d

390 (1986) (sexual conduct between defendant and complain-

ant one week before crime found admissible).

notice-and-hearing requirement serves important ob-

jectives even where the evidence is offered for those

purposes. As an initial matter, evidence of a prior

consensual sexual relationship between defendant and

complainant is not invariably ater even on the

issues of consent and bias. State v. Stellwagen, 252

Kan. 744, 746-747, 659 P.2d 167, 169-170 (1983)

(evidence lacked probative value because of remote-

ness in time). Michigan courts, like other courts,

have recognized that because of lack of relevance, a

defendant may not be erititled to introduce evidence

of his own prior sexual relationship with the victim.

jSee People v. Williams, 416 Mich. 25, 35-40, 330

N.W.2d 823, 826-829 (1982) (prior consensual sexual

act between the defendant and the victim lacked pro-

bative value on whether the victim later consented to

have group sex with the defendant and three others) ;

People v. Smith, 128 Mich. App. 361, 363-364,

340 N.W.2d 855, 856-857 (1983) (prior sexual con-

duct between defendant and the victim was not ma-

terial because the defendant did not raise a consent

defense, but sought only to impeach the complainant’s

credibility) ; State v. Hagen, 391 N.W.2d 888, 892

(Minn. Ct. App. 1986) (defendant failed to raise an

issue of consent or bias to which prior sexual acts

with the victim were relevant).

Even when evidence of a prior sexual relationship

between the defendant and complainant is admissible,

the notice-and-hearing procedure allows the trial

court to fashion appropriate limits on the scope of

the inquiry allowed. For example, a trial court may

decide to allow general inquiry into the fact of the

prior sexual relationship between the defendant and

the victim while nevertheless precluding evidence re-

garding certain specific sexual acts. See People v.

Zysk, 149 Mich. App. 452, 458-460, 386 N.W.2d 213,

216-217 (1986) (limiting evidence of prior sexual

relationship between the complainant and defendant

to type of sexual conduct involved in the alleged as-

sault). Rule 412(c)(3) of the Federal Rules of Evi-

dence expressly provides for an order following the

in camera hearing “specif[ying] evidence which may

be offered and areas with respect to which the alleged

victim may be examined or cross-examined.” The

desirability of fine-tuning the permissible lines of in-

quiry to avoid unnecessary and prejudicial exposure

of the victim’s sexual past is not an arbitrary limita-

tion on the defendant’s rights, nor is it dispropor-

tionate to the State’s interest in protecting the vic-

tim’s privacy to the extent possible. Cf. The Florida

Star v. B.J.F., 109 S. Ct. 2603, 2611 (1989) (noting

that the “privacy of victims of sexual offenses” is a

“highly significant” interest) ; Morris v. Slappy, 461

U.S. 1, 13 (1983) (“[I]n the administration of crim-

inal justice, courts may not ignore the concerns of

victims.”’).

A pretrial hearing would not simply consist of a

credibility contest between the defendant and the

complainant, as the Michigan Court of Appeals sug-

gested in People vy. Williams. A court sitting in cam-

era may interpret the evidence in the light most

favorable to the defendant and still conclude that the

sexual-history evidence is not relevant, or that its rel-

evance is so marginal as to justify its exclusion be-

caufe df its potential to distract the jury. Nothing in

Michigan law requires that, in assessing the proba-

tive force of the evidence, the court must determine

as a factual matter whether prior consensual sexual

acts actually occurred.

In sum, the advance notice requirement in Michi-

gan’s rape-shield statute is supported by nonarbi-

trary purposes, and its procedures are properly de-

signed to serve those goals. It therefore provides a

legitimate basis for the imposition of evidentiary

sanctions in appropriate cases when the defendant

fails to comply with the statute’s requirements.

C. The Sanction Of Precluding A Line Of Cross-

Examination May Legitimately Be Imposed In A

Particular Case When A Defendant Has Failed To

Comply With A Reasonable Notice Requirement

The trial court enforced Michigan’s notice require-

ment by precluding inquiry into respondent’s prior

sexual relationship with the complainant. When a

defendant fails to comply with a reasonable notice re-

quirement and thereby deprives the trial court of an

opportunity to conduct an in camera hearing in ad-

vance of the trial, preclusion of cross-examination of

the complainant on her prior sexual conduct with the

defendant may be warranted. But because the denial

of such cross-examination may, in a particular case,

seriously impede the defendant in presenting his de-

fense, the Sixth Amendment requires careful inquiry

before a trial court imposes that sanction."

15 No confrontation issue is presented unless a reasonable

factfinder “might have received a significantly different im-

pression of [the witness’] credibility had [defense counsel}

been permitted to pursue his proposed line of £ross-examina-

tion,” Olden V. Kentucky, 488 U.S. 227, 252 (1988) (per cur-

iam) (brackets in original), quoting Delaware V. Van Arsdall,

475 U.S. 673, 680 (1986). Although that issue is governed by

federal law, the findings of the Michigan Court of Appeals as

1. The sanction of preclusion is a necessary and

appropriate response in certain cases to a defendant’s

failure to comply with rules of procedure. In Taylor

v. Illinois, 484 U.S. 400 (1988), this Court rejected

the proposition that the Compulsory Process Clause

absolutely forbids the preclusion of defense-witness

testimony as a sanction for the defendant’s breach of

a discovery rule. Although noting that “the funda-

mental character” of the defendant’s right to present

evidence must be respected, the Court stated that

“(t]he integrity of the adversary process, which de-

pends both on the presentation of reliable evidence

and the rejection of unreliable evidence, the interest

in the fair and efficient administration of justice,

and the potential prejudice to the truth-determining

function of the trial process must also weigh in the

balance.” Jd. at 414-415. On the facts in Taylor, the

Court upheld the trial court’s preclusion order. _/d.

at 416-417. See also United States vy. Nobles, 422

U.S. 225 (1975) (upholding preclusion of defense

investigator’s testimony when defendant refused to

disclose investigator’s underlying report).

Taylor did not “attempt to draft a comprehensive

set of standards to guide the exercise of discretion in

every possible case.” 484 U.S. at 414. Although rec-

ognizing that “alternative sanctions are adequate and

appropriate in most cases,” id. at 413, the Court indi-

cated that a trial judge may call upon the defendant

to explain his omission, and, if the omission is revealed

to be willful and part of an effort to achieve tactical

advantage through surprise, preclusion is entirely ap-

propriate. /d. at 414. Another relevant consideration

to the character and relevance of the excluded evidence in this

case, Pet. App. 5a-7a, 1lla-12a, support the view that the

Ol’en-Van Arsdail standard was met.

is the ease of compliance with a particular procedural

rule. Jd. at 415. Finally, the Court rejected the view

that preclusion is inappropriate simply because the

prosecution could be protected from prejudice through

alternative procedures (such as a continuance or voir

dire), id. at 416-417, or because the failure to comply

might be attributable to the lawyer’s misconduct

rather than the client’s. /d. at 417-418.

Although Taylor addressed the compatibility of a

preclusion sanction with the Compulsory Process

Clause, the same analysis should apply under the Con-

frontation Clause, which is similarly designed to pro-

tect the defendant’s ability to elicit facts at trial that

he believes helpful. Cf. Westen, Confrontation and

Compulsory Process: A Unified Theory of Evidence

for Criminal Cases, 91 Harv. L. Rev. 567, 593 (1978).

Taylor observed that the compulsory process right dif-

fers from other Sixth Amendment rights in that “its

availability is dependent entirely on the defendant’s

initiative,” and requires ‘deliberate planning and af-

firmative conduct” to be effective. 484 U.S. at 410.

But that distinction is inapplicable in a setting such

as this, where the focus of the rule is on the introduc-

tion of evidence and it is immaterial whether the evi-

dence is introduced on cross-examination of a govern-

ment witness or on direct examination of a defense

witness.’®

16 Respondent was precluded both from cross-examining

Brown about his sexual relationship with her, and from offer-

ing his own testimony on that issue. Only the restriction on

cross-examination is at issue here. Respondent did not claim

an infringement of his constitutional right to testify in the

lower courts, and that issue was not discussed by the Michigan

Court of Appeals. See Resp. C.A. Br. 15-19; Pet. App. la-7a;

2. In this case, respondent’s counsel waited until

the eleventh hour—the first day of trial—before mov-

ing to introduce evidence of the complainant’s prior

sexual conduct with respondent. As counsel conceded,

the request was substantially out of time under Mich-

igan’s rape-shield statute, and respondent offered no

satisfactory explanation for the delay.’ The trial

judge was therefore justified in imposing some sanc-

tion, and it is unclear what effective sanction he could

have devised short of preclusion. To grant a continu-

ance and adjourn the trial to entertain respondent’s

motion not only would have caused administrative

disruption, and inconvenience to all trial participants,

but also would have rewarded respondent’s procrasti-

see also Br. in Opp. 6-7. In reversing respondent’s conviction

the court relied (Pet. App. 3a-4a, 6a) almost entirely on

People V. Williams, where the court had concluded that the

notice provision in Michigan’s rape-shield statute violated the

“defendant’s sixth amendmentg rights to confrontation and

cross-examination.” 95 Mich. App. at 5, 289 N.W.2d at 864.

The only question presented by the petition is whether the

Confrontation Clause was violated by the trial court’s ruling

in this case. Pe!. 1.

'’ Respondent was arrested on September 5, 1984, Tr. 140,

and was initially represented by retained counsel. After a

preliminary examination on September 18, 1984, the arraign-

ment on the information was held on October 25, 1984. A mo-

tion under Michigan’s rape shield statute was due ten days

later. Respondent’s retained counsel did not file such a motion

before withdrawing on November 8, 1984. The trial judge

appointed new counsel for respondent on February 8, 1985.

Although new counsel obviously could not have filed a motion

to admit the sexual-conduct evidence within the ten-day period

after arraignment, she offered no excuse for failing to move

to admit the evidence until the beginning of trial on May 14,

1985.

nation with a trial delay that perhaps was sought for

tactical effect. A defendant has no right to an auto-

matic continuance in this setting. Cf. Morris v.

Slappy, 461 U.S. 1, 11-12 (1983) (“[B]road discre-

tion must be granted trial judges on matters of con-

tinuances; only an unreasoning and arbitrary ‘insist-

ence upon expeditiousness in the face of a justifiable

request for delay’ violates the right to the assistance

of counsel.”); Ungar v. Sarafite, 376 U.S. 575, 589

(1964) (“The matter of continuance is traditionally

within the discretion of the trial judge, and it is not

every denial of a request for more time that violates

due process even if the party fails to offer evidence

or is compelled to defend without counsel.” ).

Moreover, the rape-shield statute creates a relatively

simple procedure for counsel to follow. The require-

ment of notice and an offer of proof is a familiar one

to trial lawyers, and it is triggered at a sufficiently

advanced stage of the criminal process in Michigan to

make it reasonable to require the defendant to state

his intention to introduce sexual-history evidence. The

defendant will already have ha: a preliminary hear-

ing to determine probable cause, at which he may call

and cross-examine witnesses, and will have entered his

plea to the charges.’* In a sexual-assault case, the

‘8 Under Michigan procedure, a defendant is initially ar-

raigned on the warrant of arrest, or on complaint, and ad-

vised of his constitutional rights. Mich. Ct. R. 6.104. Within

the following 12 days a preliminary examination is scheduled.

Id. at 6.104(E). The preliminary examination determines

whether probable cause exists to bind the defendant over for

trial, Mich. Ct. R. 6.110, and “[eJach party may subpoena

witnesses, offer proofs, and examine and cross-examine wit-

nesses.” Jd. at 6.110(C). Following the preliminary exami-

nation, the prosecution is initiated by the filing of an informa-

defendant should know by that time whether his past

sexual relations with the complainant will be a factor

in his defense.

To be sure, there are considerations weighing

against the sanction of preclusion in this case. The

trial court did not explicitly address the question

whether any lesser sanctions would be adequate, or

whether it would have materially delayed the trial to

conduct a hearing on respondent’s motion. Sanctions

should be graduated to the seriousness of the infrac-

_tion, and the process of doing so involves the exercise

of discretion. A universal application of the preclu-

sion sanction when a notice is untimely would pro-

duce harsh results and, in extreme cases, could result

in a Confrontation Clause violation."’ In determining

whether the Sixth Amendment is violated by a pre-

clusion order in a particular case, a court must con-

sider the degree, purpose, and effect of the violation.

For example, preclusion would be constitutionally

valid if the court determined that the violation was

the product of willful misconduct, or purposely planned

to obtain a tactical advantage. See Taylor, 484 U.S.

at 416-417. Also relevant to the constitutional in-

tion or an ingictment. Mich. Ct. R. 6.112. At that juncture,

the arraignment on the information occurs, and the defend-

ant enters his plea. Mich. Ct. R. 6.113.

'’ For example, if a notice were filed a few days late due

to justifiable reasons beyond counsel’s control in an isolated

instance, that should normally not trigger preclusion. Like-

wise, if an indigent defendant had not received appointed

counsel during the period when notice was due, enforcement

of the statutory time limits by preclusion would normally be

inappropriate in the absence of some apparent tactical pur-

pose by the defense or serious prejudice to the prosecution.

quiry is the effect of the violation in disrupting the

trial proceedings or prejudicing the opposing party.

Courts should also consider whether admission of the

evidence would compromise the policies of the par-

ticular procedural rule that was violated. And it is,

of course, highly relevant to determine the effect that

preclusion of the evidence would have on the defend-

ant’s ability to present the essence of his defense.

Unlike the record in Taylor, the record in this case

does not at this point suggest that the violation of

the notice requirement was the product of a tactical

effort to gain an unfair advantage at trial, although

that issue was not developed below. It is also unclear

whether the prosecution was prejudiced by the late

notification of respondent’s intention to offer evidence

of prior sexual conduct,” or whether the preclusion

order denied the defendant an opportunity to present

the substance of his defense. It does appear, however,

that the purpose of the rape-shield statute to afford

privacy to the victim can still be preserved by con-

ducting a late, but in camera, hearing on the admissi-

bility of the evidence.

In our view, the initial weighing of these factors,

and the further development of the record if neces-

sary, should be undertaken by the Michigan | courts in

the first instance. The reasons for respondent’ s delay

are unclear, and the trial court did not make specific

findings on any of the questions bearing on the con-

stitutionality of the preclusion sanction in this case.

2° The prosecution was aware of prior sexual conduct be-

tween the parties, as the complaining witness had been cross-

examined at the preliminary examination about her sexual

relationship with respondent. Pr. Tr. 23.

Nor did the court of appeals consider the sanctions

issue, apart from its view on the unconstitutionality

of the notice requirement. If this Court were to up-

hold the constitutionality of the statutory notice re-

quirement, it is not clear that the Michigan courts

would uphold the sanction imposed in this case as a

matter of state law.*' If state law authorizes the

sanction, the Michigan courts are better situated than

is this Court to review and develop the factual issues

that bear upon whether the trial court’s exercise of

discretion was compatible with the Confrontation

Clause.

*! The rape-shield statute does not specifically mandate pre-

clusion as a consequence of the failure to comply with the

notice requirement. Although the Michigan Court of Appeals

has upheld a trial court’s exclusion of sexual-history evi-

dence for failure to comply with the notice requirement

alone, People Vv. Smith, 128 Mich. App. 361, 363, 340 N.W.2d

855, 856 (1983) (alternative holding), other Michigan deci-

sions suggest that trial courts should exercise discretion as a

matter of state law before applying notice provisions to ex-

clude evidence, particularly when federal constitutional rights

are at stake. See People v. Merritt, 396 Mich. 67, 82, 238

N.W.2d 31, 37-38 (1976) (discussing notice-of-alibi statute:

“({t}he preclusion sanction is an extremely severe one, and

the judge’s discretion in exercising preclusion should be lim-

ited only to an egregious case.”’) ; People v. Bennett, 116 Mich.

App. 700, 323 N.W.2d 520 (1982).

CONCLUSION

The judgment of the Michigan Court of Appeals

should be reversed and the case remanded for fur-

ther proceedings.

tespectfully submitted.