# Michigan v. K Lucas/Concurrence Blackmun

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Blackmun
* Dissenting Opinion Stevens
Justice BLACKMUN, concurring in the judgment.
I concur in the judgment. I write separately because I was among those who dissented in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), where the Court's majority rejected the argument that the Sixth Amendment prohibits the preclusion of otherwise admissible evidence as a sanction for the violation of a reciprocal-discovery rule.
In a separate dissent in Taylor, id., at 438, 108 S.Ct., at 667-68, I specifically reserved judgment on the type of question presented in this case-whether preclusion might be a permissible sanction for noncompliance with a rule designed for a specific kind of evidence-based on my belief that the rule may embody legitimate state interests that differ substantially from the truth-seeking interest underlying a reciprocal-discovery rule. In my view, if the sanction of preclusion can be implemented to further those interests without unduly distorting the truth-seeking process, the Sixth Amendment does not prohibit the sanction's use.
The notice-and-hearing requirement adopted by the State of Michigan represents, as respondent Lucas does not deny, "a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy." Ante, at 150. In addition, a notice-and-hearing requirement is specifically designed to minimize trial delay by providing the trial court an opportunity to rule on the admissibility of the proffered evidence in advance of trial. Finally, as with a notice-of-alibi rule, the notice requirement in this Michigan statute represents a legislative attempt to identify a kind of evidence-evidence of past sexual conduct-with respect to which credibility determinations are likely to be dispositive, and to permit (or perhaps compel) the defendant and the State to gather and preserve evidence and testimony soon after the alleged offense, when memories of witnesses are fresh and vivid. It seems clear that these interests, unlike the State's interest in truthseeking, may in some cases be advanced by imposition of the sanction of preclusion, and that the sanction therefore would not constitute an arbitrary response to the failure to comply. See Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987).
Of course, the State's interest in the full and truthful disclosure of critical facts remains of paramount concern in the criminal-trial process, and it may be that, in most cases, preclusion will be "disproportionate to the purposes [the rule is] designed to serve." Ibid. Nonetheless, I agree with the Court that failure to comply with the notice-and-hearing requirement of Michigan's rape-shield statute "may in some cases justify even the severe sanction of preclusion." Ante, at 153.
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
Because the judgment entered by the Michigan Court of Appeals in this case was unquestionably correct, I would affirm. The fact that a state court's opinion could have been written more precisely than it was is not, in my view, a sufficient reason for either granting certiorari or requiring the state court to write another opinion. We sit, not as an editorial board of review, but rather as an appellate court. Our task is limited to reviewing "judgments, not opinions." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984); see Black v. Cutter Laboratories, 351 U.S. 292, 297-298, 76 S.Ct. 824, 827, 100 L.Ed. 1188 (1956); see also K Mart Corp. v. Cartier, Inc, 485 U.S. 176, 185, 108 S.Ct. 950, 957, 99 L.Ed.2d 151 (1988).
In this case, I am not at all sure that the Michigan Court of Appeals adopted the "per se " rule that this Court describes in its opinion. See ante, at 146, 149, 151, 152. In its per curiam, the state court never uses the word "per se," never mentions the Federal Constitution, and indeed, never cites any federal cases. Rather, the Michigan Court of Appeals simply holds that the trial court's preclusion of potentially relevant evidence in reliance on an unconstitutional notice provision in a limited class of rape cases requires a new trial. The notice provision at issue here requires a defendant who intends to introduce evidence of a victim's past sexual relations with him to give notice within 10 days after arraignment on the information. Mich.Comp.Laws Ann. § 750.520j (1991). As both petitioner and respondent acknowledge, "Michigan appears to be the only State which requires the notice to be filed 'within 10 days after the arraignment on the information. . . .' " Brief for Petitioner 38. Other States and the Federal Government simply require that notice be filed at various times before the start of the trial. Ibid.; see Brief for Respondent 29, and n. 24.
Although the Court of Appeals does not explicitly rely on the unduly strict time period ("10 days after arraignment ") provided by the statute, it does hold that "the ten-day notice provision" is unconstitutional when used to preclude testimony of a victim's past sexual relationship with the defendant. 160 Mich.App. 692, 694, 408 N.W.2d 431, 432 (1987); id., at 695, 408 N.W.2d, at 432, quoting People v. Williams, 95 Mich.App. 1, 11, 289 N.W.2d 863, 867 (1980), rev'd on other grounds, 416 Mich. 25, 330 N.W.2d 823 (1982). Because the 10-day requirement, in my view, and possibly in the majority's view, see ante, at 151, is overly restrictive, the use of that notice requirement to preclude evidence of a prior sexual relationship between the defendant and victim clearly provides adequate support for the Court of Appeals' holding that the statute is unconstitutional. The Court of Appeals, however, discusses the second theory more fully than the first, and therefore, I address it as well.
As I read the Court of Appeals' per curiam, as well as its earlier opinion in People v. Williams, in the class of rape cases in which the victim and the defendant have had a prior sexual relationship, evidence of this relationship may be relevant when the defendant raises the defense of consent. The Court of Appeals reasoned that in such a situation, the in camera hearing does not play a useful role; rather, it is likely to become a contest of the victim's word against the defendant's word, with the judge reaching his decision based upon his assessment of the credibility of each, and that decision is better left to the jury. 95 Mich.App., at 9, 289 N.W.2d, at 866. As the Court of Appeals explained by quoting extensively from Williams, when surprise is not an issue because both victim and defendant have had a prior relationship and do not need to gather additional witnesses to develop that information, then notice " 'in this situation . . . would serve no useful purpose.' " 160 Mich.App., at 695, 408 N.W.2d, at 432 (quoting Williams, 95 Mich.App., at 10, 289 N.W.2d, at 867).
The rule that the Michigan Court of Appeals adopts, in which it generally assumes that preclusion is an unnecessarily harsh remedy for violating this statute's particularly strict notice requirement when the defendant and victim have had a past relationship and the defendant is raising the defense of consent, not only is reasonable, but also is consistent with our opinion in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Although in Taylor we held that the preclusion sanction was appropriate, we did so because in Taylor it was "plain that the case fits into the category of willful misconduct in which the severest sanction is appropriate." Id., at 417, 108 S.Ct., at 657. Of course, in those cases in which there is strong reason to believe that the violation of a rule was designed to facilitate the fabrication of false testimony, an exception to the general rule can be fashioned. I find nothing in the Michigan Court of Appeals' opinion in this case that would preclude an exceptional response to an exceptional case. See id., at 416-417, 108 S.Ct., at 656-57 (preclusion may be appropriate if the violation was the product of willful misconduct, or was purposely planned to obtain a tactical advantage). Although the Michigan Court of Appeals' opinion may be less precise than it should have been, I do not believe it went so far as to adopt the "per se " straw man that the Court has decided to knock down today.
Because I am convinced that the Court of Appeals correctly held that this unique Michigan statute is unconstitutional, I would affirm its judgment.

## Notes

* ↑ The Court of Appeals does rely on 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), and in that case, the Court of Appeals does refer to the defendant's Sixth Amendment right to confrontation and cross-examination. 95 Mich.App., at 5, 289 N.W.2d, at 864. The Sixth Amendment provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S.C.onst., Amdt. 6. The right of cross-examination is derived from the Sixth Amendment's language guaranteeing the right of the accused to confront the witnesses against him. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The Sixth Amendment has been held applicable to the States. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
* ↑ The Court's holding is summarized in the following portion of its opinion:
* ↑ In this case in particular the prosecutor did not claim surprise because most of the excluded evidence had been adduced at the preliminary hearing.
* ↑ The Court of Appeals was careful to distinguish this situation from the situation in Williams in which the four defendants sought to introduce evidence of prior sexual conduct between the victim and one of the defendants as evidence that the victim would consent to sex with all of the defendants. The Court of Appeals noted that the Michigan Supreme Court had found "this premise untenable." 160 Mich.App., at 695, 408 N.W.2d, at 432. The Williams court, like the Court of Appeals here, acknowledged the validity of the notice requirement as applied to "sexual conduct between a complainant and third persons." People v. Williams, 95 Mich.App., at 10, 289 N.W.2d, at 866; see 160 Mich.App., at 695, 408 N.W.2d, at 432.
* ↑ "It should be noted that in Illinois, the sanction of preclusion is reserved for only the most extreme cases. In People v. Rayford, the Illinois Appellate Court explained:
" 'The exclusion of evidence is a drastic measure; and the rule in civil cases limits its application to flagrant violations, where the uncooperative party demonstrates a "deliberate contumacious or unwarranted disregard of the court's authority." (Schwartz v. Moats, 3 Ill.App.3d 596, 599, 277 N.E.2d 529, 531; [1971] Department of Transportation v. Mainline Center, Inc., 38 Ill.App.3d 538, 347 N.E.2d 837 [1976].) The reasons for restricting the use of the exclusion sanction to only the most extreme situations are even more compelling in the case of criminal defendants, where due process requires that a defendant be permitted to offer testimony of witnesses in his defense. (Washington v. Texas, 388 U.S. 14 [87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) ]. . . .) "Few rights are more fundamental than that of an accused to present witnesses in his own defense." (Chambers v. Mississippi, 410 U.S. 284, 302. . . . [93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) ] 43 Ill.App.3d [283], at 286-287 [1 Ill.Dec. 941, at 944], 356 N.E.2d [1274], at 1277 [1976]." Taylor v. Illinois, 484 U.S., at 417, n. 23 [108 S.Ct., at 657, n. 23].
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