MICHIGAN v. LUCAS

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IN THE SUPREME COURT OF THE UNITED STATES

MICHIGAN, Petitioner v. NOLAN K. LUCAS

No. 90-149

March 26, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

APPEARANCES:

DON W. ATKINS, ESQ., Wayne County Prosecuting Attorney, Detroit, Michigan; on behalf of the Petitioner.

KENNETH W. STARR, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioner.

MARK H. MAGIDSON, ESQ., Detroit, Michigan; on behalf of the Respondent.

PROCEEDINGS

11:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 90-149, Michigan against Lucas.

Mr. Atkins.

ORAL ARGUMENT OF DON W. ATKINS ON BEHALF OF THE PETITIONER

MR. ATKINS: Mr. Chief Justice, and may it please the Court:

The issue before the Court today is whether the confrontation clause of the Sixth Amendment is violated when the notice and hearing provision of the Michigan Rape Shield Law is applied to exclude arguably relevant evidence when no attempt is made to cure the defect until the very day of trial. The Michigan court of appeals in this particular case held that not only the 10-day notice provision, but also the pretrial hearing provision of the Rape Shield Law, violated the defendant's Sixth Amendment rights to confrontation, quote, "when applied to preclude the evidence of specific instances of prior sexual conduct between the complainant and the defendant."

At the outset let me make clear what the statute both requires and what it prohibits. What the statute requires simply is two things: that a notice be filed within 10 days after the arraignment on the information requesting the court to hold a hearing to determine whether particular evidence of prior sexual conduct between the defendant and the victim is relevant and is to be admitted. This notice in turn triggers a very important procedural aspect of this case, and that is the pretrial hearing to determine whether or not the evidence is both logically and legally admissible in the case when tried.

The importance, I think, of the Rape Shield Law, at least the one we're dealing with here in Michigan, is that the underlying principle of that particular notice provision serves two very fundamental purposes. The major premise, of course, that the legislature of Michigan decided upon was that the victim of sexual assaults certainly has a right to her sexual privacy, and that in doing so we want to counterbalance that interest, which I believe is clearly a legitimate interest, with the interest of the defendant. And how best to do that?

QUESTION: Well, Mr. Atkins, in this case aren't we dealing just with the notice requirement of this statute? Isn't that all we have before us here?

MR. ATKINS: Precisely correct, Your Honor.

QUESTION: And the statute does not itself specify what the trial court will do if the notice is not given in a timely fashion.

MR. ATKINS: That is correct, Your Honor.

QUESTION: And in this case the trial court decided to preclude the testimony and the evidence because of the failure to comply with the notice requirement.

MR. ATKINS: That is correct, Your Honor.

QUESTION: And the Michigan court of appeals held that preclusion of the evidence in every case would be unconstitutional.

MR. ATKINS: I believe that's what they said. In this particular --

QUESTION: So that's what we have to review, whether that approach is correct and whether there might be some cases were preclusion is allowable.

MR. ATKINS: Yes, Your Honor. I would not be standing before the Court today except for the facts in this case, in which the default occurred on the very day of trial, some 7 months after the arraignment on the information. I would -- readily admit to the Court today that there has to be, to protect the defendant's Sixth Amendment rights, a sliding scale of remedies, if you will. If in fact this case had turned on a situation in which the notice had been filed on the eleventh day after the arraignment on the information, or perhaps at some other reasonable time before trial in the case, and I don't know what that time would be, it could be as little as 2 days, it could be as little as a week, but somewhere in between there the court, the trial court hearing that motion must determine that automatic preclusion is not an appropriate remedy.

QUESTION: The statute simply doesn't say what the remedy is, does it?

MR. ATKINS: No, it does not, Your Honor. That is correct. The statute does not require outright preclusion because it is indeed silent upon that. It says it shall not be admissible, but it does not indicate that total preclusion is the only remedy. And I am not suggesting that that should be the only remedy.

QUESTION: You said there were two interests that the State had, and one is the privacy rights of the victim, and what's the other?

MR. ATKINS: The other one is the balancing of the rights of the defendant, the confrontational rights of the defendant. Because the only issue before the Court, as correctly noted earlier, is that we're dealing with a notice provision. But that notice provision is intended to provide a defendant in a criminal case with a window of opportunity, if you will, a window which will permit him to bring before the trier of fact, or in this case the trial judge I should say, to determine outside of the presence of the jury whether the evidence he wishes to bring in is logically and legally relevant and admissible.

QUESTION: Is there much doubt in this case but that the evidence should not have been admitted had the notice been given?

MR. ATKINS: Should not have been admitted, Your Honor?

QUESTION: Or should have been admitted?

MR. ATKINS: Taking it either way, Your Honor, I think there is a legitimate argument that could be made, and I think I attempted to make it earlier in my brief, that what I think we were dealing with in this particular case was not so much the evidence of the actual details of the sexual encounters that they experienced in a previous time before this event. What the defendant, I think, wished to get across to the court and the trier of fact was that there was an intimate relationship which may have included a sexual aspect to that relationship.

There was no indication of an offer of proof or otherwise that the specific details of the sexual encounters they had earlier, before these events occurred on August 31, had any particular relevance to the defense presented at trial. The defense was one of consent because we had a intimate relationship at an earlier time.

Nevertheless, whether or not that's the case, a general sexual aspect of the relationship, or whether a specific sexual act was important, I don't believe is truly necessary for this Court's consideration.

QUESTION: Well, do you think that if there had been a hearing in the case the judge would have given certain instructions and rulings as to the extent to which this relationship could have been described?

MR. ATKINS: I don't think there's any question but that the judge could have fashioned a remedy. There -- clearly he could have. He could have either permitted, if the evidence which the defendant wished to place before the trier of fact required the details of past sexual encounters, or just simply the fact that there had been a sexual relationship.

But again, what this case is not about, it's not about whether or not there was a case of ineffective assistance of counsel, and it's not about whether or not the trial judge abused his discretion by utilizing a preclusion evidence -- of the evidence, and it's not about whether the actual evidence which may have been offered would have been relevant and otherwise admissible.

QUESTION: Well, are you saying that there are substantial privacy rights of the victim that could and would likely have been protected in this case had some advance notice, particularly the notice required by the statute, been given?

MR. ATKINS: That is precisely my point.

QUESTION: What happens in a preliminary hearing in a case like this? I take it from the record that this entire relationship was gone into at the preliminary hearing.

MR. ATKINS: It was in fact.

QUESTION: That doesn't sound like it's got, that the State has much interest in the privacy of the victim, if a public preliminary hearing washes all this linen.

MR. ATKINS: It is true, Your Honor, and it's quite regrettable, and I believe, and I'll admit to the Court that I think the prosecutor at the preliminary examination simply dropped the ball. An objection should have been made --

QUESTION: Would the statute apply to the preliminary hearing?

MR. ATKINS: I believe it would have, because the statute is silent as to what occurs prior to trial. All that the statute permits is that 10-day window of opportunity. It is maybe silent as to what occurs before that, but nevertheless, I think the purposes of that could have been prevented at the preliminary examination.

QUESTION: On what grounds?

MR. ATKINS: The examination -- well, if nothing else, Your Honor, certainly on relevance grounds. Because at the examination, the focus of the preliminary examination is only to determine probable cause. A question of what defense may arise later at trial is not properly before a preliminary examination magistrate. All that that magistrate needs to determine is whether or not there is probable cause to believe the crime has been committed, and whether or not this defendant may have committed it.

QUESTION: Was this -- was this testimony at the preliminary brought out by the prosecutor?

MR. ATKINS: No, it was brought out by defense counsel during his cross-examination of the witness. The specific sexual detail evidence, that's correct, Your Honor.

QUESTION: Are there provisions in Michigan for closing the preliminary hearings?

MR. ATKINS: There are provisions, Your Honor, but I don't believe it would have applied in this case anyway. It was not certainly requested by the prosecution beforehand, and again, I don't know why the prosecutor didn't object. Nevertheless, I don't believe that would foreclose the prosecutor subsequently at trial from attempting to exclude that evidence. Because again, if you go to the purposes of the Rape Shield Law, that is simply to protect at every possible opportunity, and it should not preclude the admission or the exclusion of the evidence at any subsequent hearing, whether it be at pretrial hearing after the arraignment or whether it be at the trial itself.

QUESTION: The trial is before a 12-person jury?

MR. ATKINS: This one wasn't. But of course it would have been otherwise, because of the --

QUESTION: Was this a bench trial?

MR. ATKINS: It ended up being a bench trial after the oral motion made on the day of trial was denied. At that point, immediately thereafter, the defendant and his counsel waived the right to jury trial, and then the case was heard by the very judge who in fact heard the oral motion for permission to admit that evidence.

QUESTION: Mr. Atkins, what is the State's -- there's no question about the interest in the victim's privacy or in the defendant's right to confrontation. How do you articulate the State's interest in requiring notice so early on in the proceeding, 10 days from the --

MR. ATKINS: 10 days after the arraignment on the information. Your Honor, again, this statute was the first one in the country to be enacted in 1974. And I think others were modeled perhaps after it, and changed subsequently depending upon the nature of the legislature's interest in it. But in this particular case trials in Michigan, once the arraignment of the information is had, actually enters onto a relatively fast track. In this case I think the docket entries and the case inquiry notice, which is part of the court record, would indicate that the trial date originally was set for sometime in late November, a period of only 4 weeks after the arraignment on the information.

There was a final conference date of November 14, 1984, at which point the first adjournment was had. What I am trying to indicate, of course, to the Justice is this, that the 10-day period after the arraignment was set because essentially many cases in Michigan, even cases such as this, a major felony case, could be tried within a very short period of time after the arraignment.

QUESTION: So that we really ought to look at it not so much as a case requiring, or a statute requiring notice 10 days after arraignment, but requiring notice say 3 or 4 weeks before the trial date? That would be an equally accurate way of looking at the effect of this?

MR. ATKINS: I think it could have been done either way, Your Honor, but I think the arraignment on the information date was selected because, quite frankly, Federal felony trials such as this could be tried, certainly in Wayne County even though it's a busy metropolitan court, anywhere from 2 to 4 weeks after the arraignment. So by setting it earlier you accomplish a number of tasks required of it, namely that you do not surprise the prosecution. There are cases in which extensive prehearings, pretrial hearings may be necessary in a case such as this or even one in which the facts are somewhat different. You prevent the surprise, you permit both sides an opportunity to gather their sources, if you will, for full investigation and analysis at that closed in camera hearing.

It also provides another important aspect, and that is for the judge in the individual case. Rather than getting to a position 1 day or the day of trial in which you have what may be called hydraulic pressures upon the court to go at that time with the trial, if you have a pretrial hearing sufficiently in advance of trial, the trial judge has the opportunity to sit back calmly, if you will, or at least in a more detached, less pressurized atmosphere, to consider the arguments and the evidence of both sides, both the defendant's evidence and the prosecution's evidence. So there are some very important I think benefits not only to the prosecution but also to the defendant in preparing the case. And I think when you have a situation in which the evidence sought to be excluded or included, if it's the defendant's point of view, is that you have an opportunity again for that thorough analysis beforehand of permitting a more realistic, even-handed approach.

QUESTION: Well, Mr. Atkins, I didn't think the court below addressed the question of whether the notice period is too short. Is that before us?

MR. ATKINS: No, I don't believe it is.

QUESTION: No?

MR. ATKINS: That particular question is not.

QUESTION: And why isn't the State's interest sufficiently protected, even though the request comes late to consider this testimony and offer it, if the trial court grants an in camera hearing and considers alternative sanctions but lets the evidence in? I mean, isn't that a possibility and an appropriate way to address the State's interests?

MR. ATKINS: It could be in other situations, Your Honor. Again, I think this particular case is important, and it's important to the Court I think because it came on the day of trial. As I indicated earlier, I think it would be entirely appropriate and, in guarding the defendant's Sixth Amendment rights, to be able at a sufficient time before trial to hold this kind of a hearing. I think preclusion may be appropriate and, of course as in Taylor v. Illinois, the Court held that a preclusion remedy was appropriate, and I believe that violation occurred either on the day of trial or perhaps even the second day of trial.

QUESTION: Mr. Atkins, can I interrupt? I have a little difficulty getting -- really focusing on the precise issue before us. As I understand it the opinion we're reviewing is the one in appendix 8 of the cert. petition, the court of appeals' opinion, the per curiam, in which they say they solely upon the failure of defendant to comply with the notice provision of subsection 2, they reverse, and that because the Michigan court had previously held that provision unconstitutional. Is there anything in this opinion that on the face of the opinion indicates that this was based on a Federal ground?

MR. ATKINS: Oh, yes, Your Honor, I believe it is.

QUESTION: Where in the opinion do they say anything about -- they don't cite the Sixth Amendment or any Federal cases.

MR. ATKINS: I believe they did in the initial opinion. I believe they said that it was definitely a violation of the Sixth Amendment right of confrontation.

QUESTION: By the initial opinion, do you mean the opinion in this case or in the Williams case?

MR. ATKINS: No, in this case, which relied upon the Williams decision. This particular panel of the court of appeals in the Lucas case. In the case, the initial decision by the Michigan court of appeals alluded to and specifically referred to relying upon the decision in the Williams case --

QUESTION: Right.

MR. ATKINS: -- at 95 Michigan appeals, I believe it is. And that case was specifically grounded upon the Sixth Amendment right to confrontation.

QUESTION: I'm asking about this case. Do we have to read the Williams opinion to understand the basis for their holding the notice opinion unconstitutional?

MR. ATKINS: I think it makes it clearer, Your Honor, that in fact the Lucas --

QUESTION: Can you tell me whether on the face of this opinion there is a reasonable basis for believing this decision was based on Federal law?

MR. ATKINS: Yes, Your Honor, I do, because it in turn relied upon the Williams case.

QUESTION: Just because it cited a Michigan case which in turn relied on it. So you have to go to the other case to find the Federal ground for decision?

MR. ATKINS: I think you could do that, yes, Your Honor.

QUESTION: Well, you must do it, isn't that true?

MR. ATKINS: If the Sixth Amendment is not mentioned in the Lucas opinion, then you, of course --

QUESTION: I don't find it mentioned and I don't find any Federal cases cited. And the Sixth Amendment -- on the Sixth Amendment they hold that the fact that the notice had to be given within 10 days made, violated the confrontation clause.

MR. ATKINS: Yes, it did.

QUESTION: Mr. Atkins, I just want to go back to something you said in response to one of Justice O'Connor's questions. Is it correct that you agree that there has got to be some kind of an exception mechanism applied to the statute?

MR. ATKINS: Yes.

QUESTION: Okay.

MR. ATKINS: Absolutely. And I think that can be found in the decision of the Michigan Supreme Court in the Hackett case in which Justice Boyl discusses that there may be other Sixth Amendment rights that are not covered by the statute which have to be considered by a trial court even though they may not be specifically mentioned. In other words, Michigan takes a broad view of not only the victim's rights, but the necessary confrontational rights of the defendant. They too must be defended as well.

If I may, Your Honor, reserve any time for rebuttal?

QUESTION: Very well, Mr. Atkins.

General Starr.

ORAL ARGUMENT OF KENNETH W. STARR ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE SUPPORTING THE PETITIONER

MR. STARR: Mr. Chief Justice, and may it please the Court:

Over the past 15 to 20 years, 48 States and the Congress of the United States have passed rape shield statutes. Michigan's law was the first. It was the first in a series of efforts throughout the Nation to protect rape victims, and specifically of responding to the problem of forcing rape victims to endure what frequently became, in the view of the Congress of the United States and other State legislatures, an unnecessarily humiliating process with the systemic effect that, in the view of Congress, rape victims were less willing to report this chronically under-reported crime.

QUESTION: May I ask, General Starr, in the survey, is this the only statute that has this particular 10-day notice requirement?

MR. STARR: That is correct. However, it is my understanding, as Mr. Atkins indicated, that the arraignment date in Michigan is in fact closely tied, ordinarily, to the trial date.

QUESTION: But the only reason I ask you, I suppose if we affirm in this case it would not necessarily invalidate the rape shield statutes all over the country.

MR. STARR: Well, except that the ground on which this statute was invalidated did not have to do with the timing of the notice. It had to do, rather, with to whom this statute applied. As I understand the attack in the State courts, there was no indication at all that the period for challenging or for educing the notice and to file the appropriate motion and the like was unreasonable. Indeed it couldn't have been here.

This was a twice-continued trial. This proceeding was originally scheduled for trial in November of 1984. It was twice postponed at the defendant's request. And yet it was only on May 14, the first day of trial, that counsel says in utter -- not present counsel, but trial counsel says in utter violation of the rule, I want to educe evidence even though I know it goes against the statute. The Michigan court of appeals --

QUESTION: Yes, but the trial judge would have excluded it even if the offer had been made on the eleventh day, as I understand.

MR. STARR: Oh, I disagree with that, with all respect, Justice Stevens. I think the message of the courts of Michigan are quite clear that preclusion as a remedy is a remedy that should be carefully calibrated, just as this Court taught in cases such as Taylor against Illinois. I think his -- if you read what he said, what Judge Farmer said, the transcript can be read, if you give it a hard reading, to suggest automatic preclusion. I would suggest, Justice Stevens, that the better, more appropriate, and fair way to read it is in context of a matter that is --

QUESTION: All I did was read the court of appeals opinion which says based solely on the failure to comply with the notice provision.

MR. STARR: There was a complete failure to --

QUESTION: And that was the sole reason for their decision.

MR. STARR: But at a critical point.

QUESTION: So we have to examine the trial transcript to find out the grounds for decision, too? And was he relying -- well, never mind.

MR. STARR: I don't think that there is -- the specific issue that is before the Court is, as Justice O'Connor was suggesting, a very narrow one. Is this kind of notice requirement, which is responsive to the systemic problem of this kind of process, operating to degrade victims of crime? Is this notice provision unconstitutional per se on its face as applied to this kind of case? And the answer to that surely is no, that it's not. This Court has held time and again that States are free to impose reasonable rules so as to order their criminal proceedings, and a notice provision was specifically upheld 21 years ago in Williams against Florida.

The Federal Rules of Criminal Procedure are filled with notice provisions that must be complied with. A notice provision is in fact simply a way of ordering the procedure so that a determination can be made as to whether this evidence is admissible or not.

In response to Justice Kennedy's point, it seems to me that there is a potential here that some, much perhaps, of this evidence would have been deemed relevant if the appropriate proceedings had been followed. However, and I think this is an important part of this case, this evidence is not the critical sort of evidence, the key sort of evidence that has troubled this Court in cases such as Chambers against Mississippi, Rock against Arkansas, and the like.

This is marginal testimony at best, and the reason is this. This was tried before a judge who was operating under no delusions. He could not have been operating under the misimpression that there was in fact not an intimate relationship here. The victim herself testified that there was a boyfriend-girlfriend relationship for --

QUESTION: Why would trial before a judge make any difference than trial before a jury on that point, General Starr?

MR. STARR: Well, the evidence -- I simply mean that -- it makes none. It's simply the trier of fact, which in this instance was Judge Farmer, had before him in this record at trial -- it was a different judge in the preliminary examination -- evidence of the intimacy of the relationship. What -- the evidence, therefore, that was sought to be educed was in fact marginal.

And the key point is this. Nothing went to the witnesses' credibility, nothing went to bias. It is not like this Court's opinions in Delaware against Van Arsdall and other cases where the credibility of a witness is on the line. There was no testimony --

QUESTION: It wasn't marginal, General Starr. I mean, you think that that's the -- is that necessary for reversing here?

MR. STARR: This Court, in reversing a State trial on confrontation clause grounds, has looked to whether this was critical evidence. That is exactly the term the Court used in Chambers against Mississippi, and I think that is sound. The Court looks at the trial to see whether the basic confrontation clause value was achieved, basic Sixth Amendment values of whether this individual was able to put his case before the trier of fact. And here there can be no doubt, a fair minded reading of this transcript will indicate that he was permitted to do that, including cross-examining the victim at length.

I thank the Court.

QUESTION: Well, General Starr, I suppose we don't have to decide that question because the court below didn't make any findings on the critical nature of the evidence or the prejudice to the defendant here.

MR. STARR: That is exactly correct. Again, the issue --

QUESTION: It could be remanded.

MR. STARR: The issue is very narrow as to whether this kind of notice requirement, which is found in the Federal Rules of Criminal Procedure, is unconstitutional per se.

QUESTION: So, well -- we should remand and say what? Consider whether it was crucial evidence? If it -- if it wasn't crucial evidence, then you're wrong, but if it -- or if it was crucial evidence, then you are wrong?

MR. STARR: It seems to me that the Court can --

QUESTION: Suppose it was crucial evidence. Could it have been kept out?

MR. STARR: If it were crucial evidence I think we would have a different case under Chambers --

QUESTION: I know we'd have a different case. Could it be kept out?

MR. STARR: I think the result might be different. That's exactly the teaching of this Court.

QUESTION: Well, would it?

MR. STARR: Not here. Not here. This evidence was in fact not critical, this was not -- no one was kept off the stand --

QUESTION: I know it. I'm saying assuming it is critical, can't the State say this is the way we run a trial? You get this evidence in in advance.

MR. STARR: Oh, yes. I'm sorry.

QUESTION: I mean, there are a lot of other provisions. Suppose there are requirements that you list your witnesses for the trial judge before the trial, and then somebody comes in at the last minute, never having listed a witness, no particular reason, and says I want to get on an additional witness.

MR. STARR: Quite right.

QUESTION: Do you have to let that witness on?

MR. STARR: No. We would look under the Taylor v. Illinois analysis to the entirety of the circumstances to see whether preclusion, which is a serious remedy, is an appropriate remedy.

QUESTION: This whole thing is governed by what a State can do with respect to individual cumulative witnesses is governed by the Constitution?

MR. STARR: It can be under this Court's --

QUESTION: Chambers is a total sport. It has never been cited again in any opinion of this Court.

MR. STARR: Well, this Court has looked to the importance of evidence, including more recently in Rock against Arkansas. The point I would close with is this. There is no need at all to constitutionally second guess State court judgments where in fact it is not behaving, the State court is not behaving in an arbitrary way and imposing a remedy that is disproportionate to the violation. And here, under all the circumstances it seems to me that preclusion is not -- by no means an inappropriate remedy.

QUESTION: Thank you, General Starr.

MR. STARR: Thank you.

QUESTION: Mr. Magidson.

ORAL ARGUMENT OF MARK H. MAGIDSON ON BEHALF OF THE RESPONDENT

MR. MAGIDSON: Mr. Chief Justice, and may it please the Court:

This case involves a State evidentiary statute which as applied in this particular case impermissibly interfered with Mr. Lucas' right to present a defense either by way of cross-examination or through his own direct testimony on the stand. Now the statute involved here is the Michigan Rape Shield Law. The overall purpose, as we have heard, is to prevent a victim of rape from being unnecessarily humiliated on the stand by keeping out of evidence her prior sexual practices, particularly as it applies to third parties.

All States, well, 48 States, have passed rape shield laws. All of those jurisdictions include exceptions to the rape shield law. One exception is where the prior sexual relationship or experiences are between the complaining witness and the defendant. All States have those exceptions. In Michigan --

QUESTION: Mr. Magidson, are you saying that all the others, the other 47 States all have that particular exception?

MR. MAGIDSON: Yes. That's common. Now, every State has different exceptions, but common to every jurisdiction that I have been able to look at, common to all of those jurisdictions is the fact that one of the exceptions to the rape shield law is where the prior sexual relationship is between the complaining witness and the defendant. In Michigan if a defendant wishes to use this evidence, as we have heard, he must file a motion and an offer of proof within 10 days after the arraignment on the information. And this is the earliest notice requirement in the country.

And I take exception to what was said here as to the time period. As a practical matter, what we're talking about from the time of the arraignment on the information to the time of trial in Wayne County, we're looking at between 2 and 4 months.

QUESTION: Well, we don't have the question of the validity of the time of the notice before us in this case, though, do we?

MR. MAGIDSON: No, that's correct.

QUESTION: Granted, it's short, but I didn't think we had to decide that -- decide it on that basis here.

MR. MAGIDSON: No, you don't. The only reason I mention it is that --

QUESTION: Uh-huh.

MR. MAGIDSON: -- it's so out of proportion, the length of time is so out of proportion to all of the other jurisdictions, including the Federal rule, that I think it's significant, that it raises an issue.

QUESTION: Now -- yes. Now, do you agree that the Michigan court of appeals here said that preclusion could never be a remedy by virtue of the Constitution?

MR. MAGIDSON: No, Justice O'Connor.

QUESTION: In essence that appeared to be its holding, a per se rule.

MR. MAGIDSON: No. I don't think so. I think what the Michigan court of appeals was saying as in this case as applied to these facts, because what the court of appeals was looking at, I think, is the fact that here, unlike other situations, the prosecutor and the complaining witness both had notice of the defense, in this case the defense of consent.

QUESTION: Well, it certainly appears, if you look at the authorities they rely on, that the Michigan court of appeals thinks at least that in all cases where it would preclude evidence of sexual conduct between a victim and the defendant, that preclusion cannot be imposed. I mean, that's what I derive from it.

MR. MAGIDSON: The court painted with a broad brush. I concede that.

QUESTION: Well, if that was its rule, do you think that's accurate? Might there not be some cases and some circumstances where preclusion even of that testimony might be appropriate?

MR. MAGIDSON: Yes. The -- and I think Taylor v. Illinois gives us guidance where, as in Taylor, you had a defense counsel who it was determined made a deliberate effort to misrepresent to the court. There the defense counsel said I found a newly discovered witness. The trial court brought in that witness and the witness said no, I have talked to the lawyer about a week ago.

There the -- in Taylor, the Court here held that where there is a deliberate act by defense counsel to gain a tactical advantage to try to somehow blindside the prosecutor, then preclusion might be an appropriate sanction. And I think that's the standard we need to look at.

QUESTION: Mr. Magidson, why, why isn't it always an appropriate sanction, at least as far as the Federal Constitution is concerned?

MR. MAGIDSON: Because --

QUESTION: Why isn't it always all right to insist upon the rules of trial? Suppose what had happened here is that the jury had retired to consider its verdict and defense counsel jumps up and says oh, Your Honor, I meant to call one other witness? I'm sorry about that, I forgot to do it before the jury retired, but please let me call, this one other witness is very important to our case. And the judge says I'm sorry, we have a rule you put in your witnesses before the jury retires. No, you can't. It is excluded. You broke the rule, you lose. Why is this any different?

MR. MAGIDSON: Well, first this was before the trial started.

QUESTION: Well, it's a different time, it's a different rule, but it's the same principle. There are rules of trial. The rules are clear. They're not difficult to comply with. This counsel didn't comply with them.

MR. MAGIDSON: I would agree --

QUESTION: What's the matter with that?

MR. MAGIDSON: The problem here is that there was no evidence that he intentionally, in this case she intentionally disregarded the court rule. At best --

QUESTION: Well, in my hypothetical counsel just forgot. It wasn't intentional. But there are rules of trial. Why can't the court enforce the rules of trial?

MR. MAGIDSON: And the court can. And the, each case is different. Now, for instance in the case of People v. Merritt, which is a Michigan Supreme Court case dealing with alibi, there defense counsel didn't file the timely notice-and the court, the supreme court in Michigan, said that there the defense counsel was sick, he was ill, and that the preclusion sanction should only be applied in the most egregious circumstances. In the case -- in the example that --

QUESTION: Is that a constitutional ruling of the Supreme Court of Michigan, or just an interpretation of the statute?

MR. MAGIDSON: It's interpretation of the statute. But the point being is that I think that -- again, this Court in Taylor v. Illinois has said the same thing. The most egregious cases where there might be other remedies --

QUESTION: But that, but that's the issue for the discretion of the judge. Does that have to be a constitutional rule? I mean, I would not say that you must exclude it all the time, but as far as the Federal Constitution is concerned, why can't you say a rule is a rule if a State wants to do it that way?

MR. MAGIDSON: It becomes a constitutional issue where -- it's a balancing test. And where the Sixth Amendment rights become offended, then that's where it becomes a constitutional issue. If by imposing a preclusion sanction you are thereby infringing or impinging upon the rights of a defendant, Sixth Amendment rights to present a defense, then that's where the balancing test. If it had to do with something other than his constitutional rights --

QUESTION: You would extend that to the first hypothetical I gave you also, to where the trial is over, the jury is retired, and you want to get in additional evidence?

MR. MAGIDSON: Based on --

QUESTION: You would extend that rule? You would not say too bad?

MR. MAGIDSON: I don't think that there should be a per se blanket -- per se preclusion under any circumstances. Perhaps in that situation where already -- the book -- the book is already closed, I would say that would be an extreme case, but --

QUESTION: I don't know why it's more extreme. It's very easy to say wait a minute, we'll call the jury back in, we have one more witness. No big deal.

MR. MAGIDSON: Well, if the reason perhaps is that the defense counsel suffered a stroke or something during trial and didn't recall, I don't know all the possibilities.

QUESTION: I don't think the Constitution requires a State to do that. I think a State can say the rule is the rule. You didn't -- we have a way that we try cases around here. This is the way. You didn't do it. The evidence doesn't get in. Period.

MR. MAGIDSON: Well, the problem, at least with this statute as it was interpreted by the trial judge, the statute itself is silent. It doesn't give a remedy. It doesn't indicate what should be done. Here the trial court strictly construed this statute. Number one, no deviations from the time period. The trial -- the trial judge looked at the statute and said well, the 10-day time period has passed, there is no alternatives, no alternatives other than preclusion. And so technically the trial counsel was correct in not seeking to bring the motion later because a court interpreted very strictly.

The problem then with this strict application of this statute which required that the time limits must be strictly complied with, as well as the preclusion sanctions which followed, caused two problems. The problems are then what is the remedy when a defense attorney who was at most negligent fails to comply with this notice requirement, and then what are the consequences of precluding that evidence or testimony.

QUESTION: But the Michigan court of appeals, as I read their opinion, Mr. Magidson, didn't rely at all on the first part, on the first of the two problems you say. That the fact that the -- that the notice -- the notice was given long after the statutory time.

MR. MAGIDSON: No, that's correct. The court of appeals indicated that -- for this reason. They looked at the purpose of notice. Why have notice at all? It has been indicated here there is at least two reasons to have notice. One is to, in the case of an alibi or insanity defense you give notice to allow the prosecutor to prepare. You give notice of your witnesses, who they are, so then they can interview them or find other witnesses. The same with insanity. The Michigan court said, well, there's no need to do that because the party is in court, number one, and number two, the people in this case had notice at the earliest opportunity in this litigation.

The defendant took the stand at this preliminary examination. He testified, and this is even prior to the arraignment on information, this, the preliminary examination is the first stage of the criminal proceeding, it's a hearing. He took the stand and he testified that this was a consensual act. We have had sex many times in the past, and this was just another situation. So at that point he indicated to the prosecutor and to the complaining witness that that was his defense. And I think that was behind what the court of appeals in Michigan was looking at.

QUESTION: But that -- didn't -- wasn't their stated reason for saying this thing is applied or this statute was unconstitutional was that you could not preclude testimony about past relationships between the defendant and the victim, whatever you could do with respect to third parties?

MR. MAGIDSON: No. What it becomes then is a -- I don't think they said that. I think you can preclude it. I think what they were saying is that the advance notice requirement where you have the two parties there in court loses its logical underpinnings. You don't need this lengthy notice period.

What the trial court could have done right then and there is a couple of things. First of all it could have adjourned the trial. But assuming that the trial court didn't want to adjourn the trial, they could have had a hearing, an in camera hearing right then and there, could have conducted that, though jury wasn't selected.

And this is no different than what occurs many times in every court situation throughout the country. Every trial judge is faced with this. You look at the evidence, an offer of proof is made, and there is an objection. The jury is sent out and then you decide, for instance, if there are photographs or something, is it more prejudicial than probative. Trial courts do this day in and day out, make these type of rulings all the time. So what the Michigan court of appeals was saying is that in these particular situations this is no different, that it could have happened right then.

The trial court could have fashioned other remedies as well. I hate to suggest this, but it could have fined trial counsel for bringing the motion at the eleventh hour. It could have done -- it could have determined that the -- it could make inquiry into the past sexual, it couldn't cross-examine the complaining witness, but it would have allowed Mr. Lucas to testify. There is infinite -- amounts of possibilities that the trial court could have done to fashion an appropriate remedy.

Here this didn't occur. The trial court felt that it did -- did not have discretion, which in a factor was -- we believe was error and at least I argued that in the lower courts. But the fact is that the court always has discretion to exercise whatever appropriate remedies --

QUESTION: Was part of the reason of the Michigan court of appeals' holding that this -- the purpose of the statute was only to provide notice and give the State a chance to investigate this testimony, and since it was testimony only involving the defendant and the victim there was no need for that sort of investigation?

MR. MAGIDSON: I think that was the thrust of the analysis of the Michigan court of appeals.

QUESTION: And then they in effect rejected the State's claim that this evidence, quite apart from notice, could be reviewed and excluded if it was not material?

MR. MAGIDSON: I think the court of appeals indicated that this becomes like just a normal type of weighing the prejudicial effect versus probative value, and that if it was in fact more prejudicial than probative, then it wouldn't be admitted and that a separate hearing could have been held outside the presence of the jury to do that. And that is normally done in these type of cases.

QUESTION: Well, they, the Michigan court of appeals reversed this conviction because, as I read it, it said that, that what is left is the usual evidentiary issues of the materiality of the evidence to the issues in the case and the balancing of its probative value with the danger of unfair prejudice. The trial court did not exclude the proposed testimony on either of those grounds. You would think that it might be a different case if the trial court had --

MR. MAGIDSON: That's true.

QUESTION: -- excluded the evidence on those grounds.

MR. MAGIDSON: That's true.

QUESTION: So, it sounds -- it doesn't sound to me like the Michigan court of appeals was saying there's a per se rule --

MR. MAGIDSON: No.

QUESTION: -- against the exclusion, total exclusion of these --

MR. MAGIDSON: No, absolutely not. The --

QUESTION: Williams reads like it, but this opinion doesn't.

MR. MAGIDSON: This opinion is limited, as I see it, to the particular facts of this case where the -- there had been notice already and the trial court failed to exercise its discretion in getting this information. The failure to go into this, to permit this, it was suggested by counsel that it was not that big a deal, but the thing is that this was important testimony on the issue, in a narrow issue of consent. In these cases the failure to allow inquiry into this past sexual relationship undermined the integrity of the fact-finding process.

The fact finder would have a different impression, if you will, of the credibility not only of the complaining witness but then also of the defendant, of his position, his theory, because there were two sides to this story, as there is in every case. And so without that, having that knowledge of the rather extensive relationship between the parties, the fact finder was deprived of having the full picture, was not able to make findings of fact based on all of the information.

And in this case, and as the -- as Michigan has held and all jurisdictions, the -- on the issue of, when the defense is consent the prior sexual relationship between the individual parties is more probative than prejudicial. And as far as, in terms of the Law Review and other articles, the experts who have reviewed this, the State legislature in all States have come to similar conclusions. So the evidence was relevant, was material, and was more probative than prejudicial.

And I think what is also important here is the -- more or less the flip side of the coin is that not only was the defendant unable to cross-examine the complaining witness on this, he was unable to testify in his -- in his own behalf. And so even assuming that, in this case that the witness, the complaining witness, couldn't be cross-examined, what justification was there not to allow the defendant in his own behalf to testify?

The purpose 00 there is two purposes, as we have discussed, of why this notice provision existed, but one of the purposes is not to penalize a defendant. He was deprived of getting on the stand and giving his -- his own version of what occurred. And this is similar to cases where, for instance, the trial court held that a confession was voluntary and then prohibited at the time of trial the defendant from testifying about police coercion. This Court said differently. It said that once you allow a defendant to testify you can't simply exclude certain material portions of his testimony without offending the principles under the Sixth Amendment and due process.

So here Mr. Lucas --

QUESTION: You could exclude parts of his testimony on the ground that they were irrelevant.

MR. MAGIDSON: Yes, you could. That's there's no doubt about that.

QUESTION: Was there an effort made to cross-examine the victim on the same subject?

MR. MAGIDSON: There was -- whenever the efforts were made the prosecutor, the trial prosecutor would jump up and object. Yes.

QUESTION: And it was sustained by the court?

MR. MAGIDSON: Absolutely.

Now -- so between those two denials, the denial of the cross-examination, the denial to present his own testimony, we had here an infringement done on his constitutional rights. And I think it's important to recognize that underlying all of this was not an intentional or deliberate action on the part of his trial counsel. In fact there was a reference made that at the time of the arraignment on the information, which was October 25th, 1984, his trial counsel at that time pled him not guilty. And in that case inquiry report that was referred to there is a notation that on that same date, October 25, 1984, his defense counsel had made a motion for substitution of counsel. We don't know -- it's not clear exactly when that occurred.

There is a suggestion in the record that at the time, from the arraignment on the information on, possibly, the defendant was not represented. The State thereafter appointed counsel sometime in either January or February of 1985, well after the time to have -- that this motion could have been filed. The strict interpretation of this -- of this statute would have precluded. And as the trial court said, the 10 days had passed, so what was the defendant to do? So this is why it's different than in the case of Taylor v. Illinois where there was a deliberate effort to gain a tactical advantage. Here at most we have negligence.

Now --

QUESTION: Do you suppose the court of appeals said that where the evidence offered is prior sexual relationship between the victim and the defendant that you never exclude the evidence based solely on the lack of notice?

MR. MAGIDSON: No. I don't think that they said that.

QUESTION: They didn't? I thought they -- I thought they said that -- I thought that's exactly what they said. They said you might be able to exclude it when it's offered on the basis -- on materiality or undue prejudice, but not because they didn't have notice.

MR. MAGIDSON: Not because of notice. Well, they've indicated -- they indicated was it lost its logical underpinnings.

QUESTION: Exactly.

MR. MAGIDSON: Exactly.

QUESTION: And they followed Williams in that regard.

MR. MAGIDSON: Right.

QUESTION: So it is a per se rule that where the victim and the defendant are the ones involved, that the notice statute cannot be applied at all?

MR. MAGIDSON: It -- I think that that's one interpretation of the court of appeals. I don't know that it has to be interpreted. I think what it's -- we're looking at here is the facts of this case where notice was in effect given at the preliminary examination. Now, whether in a different case if there was no notice given -- we have -- I have -- we have no quarrel. We're not saying that there's -- notice isn't a legitimate requirement under --

QUESTION: Even where the -- where the evidence concerns the victim and the defendant?

MR. MAGIDSON: Certainly there is a far less need to require notice, and that's what the Michigan court of appeals indicated. But for -- I don't want to suggest to the Court that notice in a criminal procedure, as was indicated in Florida v. Williams, that's been held to be constitutional as long as it's reasonable. But what is reasonable in one context can be unreasonable in another context, and I think what the Michigan court of appeals indicated in this particular context, where there's -- notice was already provided at the preliminary examination, there was no need, it lost its logical underpinnings. And particularly since --

QUESTION: Do you agree that there are instances in which the victim's relation with the defendant cannot be explored as to certain of the details of that relationship? Are there ever instances where limiting instructions in the court are proper?

MR. MAGIDSON: Sure. There -- I am sure there are. There are probably many.

QUESTION: And do you agree that there are some instances when it would be of material assistance to the court to have that hearing in advance of the trial?

MR. MAGIDSON: I think it could, but when balancing the two I don't think that it would be that great of inconvenience to have a -- it prior to trial.

QUESTION: But it would be some inconvenience?

MR. MAGIDSON: There would be some inconvenience, because the normal administration of justice, but there are normally, in any felony trial there is normally motions eliminating other pretrial matters taken up by a court, and frequently other types of hearings are conducted at the type of trial, walker hearing, motions to suppress. Testimony sometimes in Wayne County is heard even at the day of trial because you have the witnesses present and they don't -- trial doesn't require -- the trial court doesn't require witnesses to come down twice. They come down once for the motion and then for the day of trial.

So there would be some inconvenience, but on the other hand there could be convenience for doing it at the time of trial as well.

Now, there is just one other area I would like to address, and that is there has been a suggestion that this should be remanded to determine whether this was harmless error. And I would just indicate that the Michigan Supreme Court, after the court of appeals decided this case there was an appeal to the Michigan Supreme Court. The Michigan Supreme Court then remanded to the court of appeals for harmless error analysis. The Michigan court of appeals made that analysis and determined that since credibility was central to the case, that this was not harmless beyond a reasonable doubt.

So, and here this Court has given great deference to the State court's interpretation regarding harmless error. This is different than, say, Van Arsdall where there was no State determination. And in fact the Michigan -- after that analysis was made it was then taken back up to the Michigan Supreme Court, and the Michigan Supreme Court let the decision stand. So here there is -- we believe that the error was not harmless beyond a reasonable doubt, and we would ask that the Michigan court of appeals decision be affirmed.

That concludes my argument.

QUESTION: Thank you, Mr. Magidson.

Mr. Atkins, do you have rebuttal? You have 4 minutes remaining.

REBUTTAL ARGUMENT OF DON W. ATKINS ON BEHALF OF THE PETITIONER

MR. ATKINS: Thank you, Your Honor. A couple of very brief points I would like to make. I believe if the Court in reading the case will understand that what the court of appeals of Michigan did in this case was really say flat out that whenever you're excluding evidence which involves prior sexual conduct between the defendant and the complainant in a particular case, that alone -- that alone violates the Sixth Amendment right of confrontation. The only issue that I think is properly before this Court, as I have tried to emphasize earlier in this case, is that the question being whether the operation of the notice and prehearing provisions of the Rape Shield Law in and of themselves are violative of a defendant's right to confrontation. That is the only issue. I think the issue is simply that.

QUESTION: Mr. Atkins, Justice White asked your colleague a question about whether the last part of the opinion of the court of appeals in this case doesn't suggest that the testimony could have been excluded on the basis of its material -- lack of materiality or on the balancing process, the thought being that the court of appeals suggested that the trial court might have done that.

MR. ATKINS: I think, Your Honor, you could have taken another tack, and the tack is this, whether or not that evidence would have been object --

QUESTION: I mean, but I'm interested in your view of whether or not the Michigan court of appeals said that or held that.

MR. ATKINS: No, Your Honor. I -- again I would say that I think the Michigan court of appeals said flat out that the statute was unconstitutional, period, when applied to prior sexual conduct between the defendant and the victim, and those being the two --

QUESTION: In this case, you mean?

MR. ATKINS: Yes, Your Honor, I do believe that.

QUESTION: You mean just the fact of having -- of requiring notice? Requiring notice --

MR. ATKINS: Well, the notice -- I think they have said that both the notice and the pretrial hearing provision, in camera hearing provision, were both in -- together -- tandem, unconstitutional when applied to this situation without any further consideration.

QUESTION: They didn't say the notice provision was unconstitutional, only enforcing it by exclusion was unconstitutional.

MR. ATKINS: I'm not so sure that that is quite how I see it either, Your Honor, but I do see it as a situation in which the notice itself cannot, in my opinion, preclude a defendant from -- or deny a defendant his Sixth Amendment right of confrontation. I think the issues of whether or not the evidence may have been relevant, again whether they are issues of ineffective assistance of counsel and failure to raise it, are all collateral issues which, even in the State of Michigan, a defendant can raise in subsequent proceedings after consideration by this Court.

But I think again, in conclusion, Your Honor, that there is nothing in the Constitution which would have prevented the kind of remedy provided here. I would say in a lesser situation perhaps something else would have been appropriate, but I think the line has to be drawn and I think the trial court properly drew the line on the day of trial. I think those are the only issues before the Court, and I would ask the Court that in light of the matter before it and the evidence presented at trial, that this Court in fact reverse the Michigan court of appeals.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Atkins.

The case is submitted.

(Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)

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Argument of Speaker

Mr. Speaker: The opinions of the Court in two cases will be announced by Justice O'Connor.

Argument of Justice O'Connor

Mr. O'Connor: The first of the cases is Michigan against Lucas which comes to us on certiorari to the Michigan Court of Appeals.

Like most states, Michigan has a rape shield statute designed to protect victims of rape from being questioned at trial about their past sexual behavior.

The statute contains a limited exception that allows a defendant to introduce evidence of his own past sexual conduct with the victim provided that he gives a timely notice to the court and the victim by filing a written motion and offer of proof.

The respondent in this case was charged with two counts of criminal sexual conduct.

The state alleged that the respondent had used a knife to force his ex-girlfriend into his apartment where he forced her to engage in several non-consensual sexual acts.

At no time did Lucas file a written motion and offer of proof as the Michigan statute required.

Nonetheless, at the start of the trial, the respondent's attorney asked the court to allow the defense to present evidence of a prior sexual relationship between the respondent and the alleged victim.

The Trial Court denied the motion relying on the requirements of the statute which were not met.

The Michigan Court of Appeals reversed the conviction adapting a per se rule that the state's notice requirement violates the Sixth Amendment in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant.

In an opinion filed today, we vacate and remand.

In the case of Taylor against Illinois, this Court rejected the argument that probative evidence may never be precluded as a penalty for a criminal defendant's failure to comply with a legitimate state procedural rule.

The same is true here.

Michigan's rape shield statute serves legitimate state interest in protecting rape victims against surprised harassment and undue delay.

Failure to comply with the statute may in some cases justify even the severe sanction of preclusion of evidence.

Respondent argues that the preclusion of evidence was unconstitutional in this case.

We express no opinion on this question, and leave it to the Michigan Courts on remand to address in the first instance whether the State's rape shield statute authorizes preclusion and whether on the facts of this case, preclusion violated respondent's rights under the Sixth Amendment.

Justice Blackmun has filed an opinion concurring in the judgment; Justice Stevens has filed a dissenting opinion which Justice Marshall has joined.