# Amicus Curiae Brief — Michigan v. Lucas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0019%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 145

## Text

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.

yp

(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)

IV
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

Vv

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
v.

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)

2

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).

4

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.

5

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.

6

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.

7

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

8

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

9

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.

10

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,

11

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).

oe

®“ 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.”

12

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.

13

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).

14

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

15

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.

16

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).

17

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),

18

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,

19

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).

20

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-

21

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

22

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

23

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.

24

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;

25

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.

26

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-

27

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.

28

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.

29

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).

30
CONCLUSION
The judgment of the Michigan Court of Appeals

should be reversed and the case remanded for fur-
ther proceedings.

tespectfully submitted.

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

JANUARY 1991

<1? U.S GOVERNMENT POINTING Office 1991 282001

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0019%3A7. Public record. Not legal advice.