Subject:  MICHIGAN v. LUCAS, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



MICHIGAN v. LUCAS


certiorari to the court of appeals of michigan

No. 90-149.  Argued March 26, 1991 -- Decided May 20, 1991

Michigan's "rape-shield" statute generally prohibits a criminal defendant
from introducing at trial evidence of an alleged rape victim's past sexual
conduct.  However, a statutory exception permits a defendant to introduce
evidence of his own past sexual conduct with the victim, provided that he
files a written motion and an offer of proof within 10 days after he is
arraigned, whereupon the trial court may hold an in camera hearing to
determine whether the proposed evidence is admissible.  Because respondent
Lucas failed to give the statutorily required notice and, therefore, no
admissibility hearing was held, a state court refused to let him introduce,
at his bench trial on charges of criminal sexual assault, evidence of a
prior sexual relationship with the victim, his ex-girlfriend.  He was
convicted and sentenced to prison, but the State Court of Appeals reversed,
adopting a per se rule that the statutory notice-andhearing requirement
violates the Sixth Amendment in all cases where it is used to preclude
evidence of a past sexual relationship between a rape victim and a criminal
defendant.

Held:

    1. Assuming, arguendo, that the Michigan rape-shield statute authorizes
preclusion of the evidence as a remedy for a defendant's failure to comply
with the notice-and-hearing requirement, the State Court of Appeals erred
in adopting a per se rule that such preclusion is unconstitutional in all
cases.  The Sixth Amendment is not so rigid.  The noticeand-hearing
requirement serves legitimate state interests: protecting rape victims
against surprise, harassment, and unnecessary invasions of privacy and
protecting against surprise to the prosecution.  This Court's decisions
demonstrate that such interests may justify even the severe sanction of
preclusion in an appropriate case.  Taylor v. Illinois, 484 U. S. 400,
413-414, 417; United States v. Nobles, 422 U. S. 225, 241.  Pp. 4-7.

    2. The Michigan courts must address in the first instance whether the
rape-shield statute authorizes preclusion and whether, on the facts of this
case, preclusion violated Lucas' Sixth Amendment rights.  P. 8.

Vacated and remanded.

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, Scalia, Kennedy, and Souter, JJ., joined.  Blackmun, J.,
filed an opinion concurring in the judgment.  Stevens, J., filed a
dissenting opinion, in which Marshall, J., joined.
------------------------------------------------------------------------------




Subject: 90-149 -- OPINION, MICHIGAN v. LUCAS

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-149




MICHIGAN, PETITIONER v. NOLAN K. LUCAS


on writ of certiorari to the court of appeals of michigan

[May 20, 1991]



    Justice O'Connor delivered the opinion of the Court.
    Because Nolan Lucas failed to give statutorily required notice of his
intention to present evidence of an alleged rape victim's past sexual
conduct, a Michigan trial court refused to let him present the evidence at
trial.  The Michigan Court of Appeals reversed, adopting a per se rule that
preclusion of evidence of a rape victim's prior sexual relationship with a
criminal defendant violates the Sixth Amendment.  We consider the propriety
of this per se rule.

I
    Like most States, Michigan has a "rape-shield" statute designed to
protect victims of rape from being exposed at trial to harassing or
irrelevant questions concerning their past sexual behavior.  See Mich.
Comp. Laws MDRV 750.520j (1979). {1}  This statute prohibits a criminal
defendant from introducing at trial evidence of an alleged rape victim's
past sexual conduct, subject to two exceptions.  One of the exceptions is
relevant here.  It permits a defendant to introduce evidence of his own
past sexual conduct with the victim, provided that he follows certain
procedures.  Specifically, a defendant who plans to present such evidence
must file a written motion and an offer of proof "within 10 days" after he
is arraigned.  The trial court may hold "an in camera hearing to determine
whether the proposed evidence is admissible" -- i. e., whether the evidence
is material and not more prejudicial than probative.
    Lucas was charged with two counts of criminal sexual conduct.  The
State maintained that Lucas had used a knife to force Wanda Brown, his
ex-girlfriend, into his apartment, where he beat her and forced her to
engage in several non consensual sex acts.  At no time did Lucas file a
written motion and offer of proof, as required by the statute.  At the
start of trial, however, Lucas' counsel asked the trial court to permit the
defense to present evidence of a prior sexual relationship between Brown
and Lucas, "even though I know it goes against the Statute."  App. 4.
    The trial court reviewed the statute then denied the motion, stating
that "[n]one of the requirements set forth in [the statute] have been
complied with."  Id., at 7-8.  The court explained that Lucas' request was
not made within the time required by Michigan law and that, as a result, no
in camera hearing had been held to determine whether the past sexual
conduct evidence was admissible.  A bench trial then began, in which Lucas'
defense was consent.  The trial court did not credit his testimony.  The
court found Lucas guilty on two counts of criminal sexual assault and
sentenced him to a prison term of 44 to 180 months.
    The Michigan Court of Appeals reversed.  Relying 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), the Court of Appeals held that the State's
noticeand-hearing requirement is unconstitutional in all cases where it is
used to preclude evidence of past sexual conduct between a rape victim and
a criminal defendant.  160 Mich. App. 692, 694-695, 408 N. W. 2d 431, 432
(1987).  The court quoted language from Williams stating that the
requirement " `serve[s] no useful purpose' " in such cases and therefore is
insufficient to justify interference with a criminal defendant's Sixth
Amendment rights.  160 Mich. App., at 695, 408 N. W. 2d, at 432, quoting
Williams, supra, at 10, 289 N. W. 2d, at 867.  Williams surmised that the
purpose of the notice-and-hearing requirement is " `to allow the
prosecution to investigate the validity of a defendant's claim so as to
better prepare to combat it at trial.' "  160 Mich. App., at 694, 408 N. W.
2d, at 432, quoting Williams, supra, at 10, 289 N. W. 2d, at 866.  It
concluded, however, that this rationale " `loses its logical underpinnings'
" when applied to evidence of past sexual conduct between the victim and
the defendant because " `the very nature of the evidence . . . is personal
between the parties' " and therefore impossible to investigate.  160 Mich.
App., at 694, 408 N. W. 2d, at 432, quoting Williams, supra, at 10, 289 N.
W. 2d, at 866-867.
    The Court of Appeals, relying on Williams, thus adopted a per se rule
that the Michigan rape-shield statute is unconstitutional in a broad class
of cases.  Under this rule, a trial court would be unable to preclude past
sexual conduct evidence even where a defendant's failure to comply with the
notice-and-hearing requirement is a deliberate ploy to delay the trial,
surprise the prosecution, or harass the victim.  We granted certiorari, 498
U. S. --- (1990), to determine whether the Michigan Court of Appeals' per
se rule is consistent with our Sixth Amendment jurisprudence.

II
    Michigan's rape-shield statute is silent as to the consequences of a
defendant's failure to comply with the noticeand-hearing requirement.  The
trial court assumed, without explanation, that preclusion of the evidence
was an authorized remedy.  Assuming, arguendo, that the trial court was
correct, the statute unquestionably implicates the Sixth Amendment.  To the
extent that it operates to prevent a criminal defendant from presenting
relevant evidence, the defendant's ability to confront adverse witnesses
and present a defense is diminished.  This does not necessarily render the
statute unconstitutional.  "[T]he right to present relevant testimony is
not without limitation.  The right `may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process.' "
Rock v. Arkansas, 483 U. S. 44, 55 (1987), quoting Chambers v. Mississippi,
410 U. S. 284, 295 (1973).  We have explained, for example, that "trial
judges retain wide latitude" to limit reasonably a criminal defendant's
right to cross-examine a witness "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 v. Van Arsdall, 475 U. S. 673, 679 (1986).
    Lucas does not deny that legitimate state interests support the
notice-and-hearing requirement.  The Michigan statute represents a valid
legislative determination that rape victims deserve heightened protection
against surprise, harassment, and unnecessary invasions of privacy.  The
statute also protects against surprise to the prosecution.  Contrary to the
Michigan Court of Appeals' statement that a notice requirement " `serve[s]
no useful purpose' " when the victim is alleged to have had a prior sexual
relationship with the defendant, 160 Mich. App., at 695, 408 N. W. 2d, at
432, quoting Williams, supra, at 10, 289 N. W. 2d, at 867, the notice
requirement permits a prosecutor to interview persons who know the parties
and otherwise investigate whether such a prior relationship actually
existed.  When a prior sexual relationship is conceded, the
notice-and-hearing procedure allows a court to determine in advance of
trial whether evidence of the relationship "is material to a fact at issue
in the case" and whether "its inflammatory or prejudicial nature . . .
outweigh[s] its probative value."  Mich. Comp. Laws MDRV 750.520j(1)
(1979).
    We have upheld notice requirements in analogous settings.  In Williams
v. Florida, 399 U. S. 78 (1970), for example, this Court upheld a Florida
rule that required a criminal defendant to notify the State in advance of
trial of any alibi witnesses that he intended to call.  The Court observed
that the notice requirement "by itself in no way affected [the defendant's]
crucial decision to call alibi witnesses. . . .  At most, the rule only
compelled [the defendant] to accelerate the timing of his disclosure,
forcing him to divulge at an earlier date information that [he] planned to
divulge at trial."  Id., at 85.  Accelerating the disclosure of this
evidence did not violate the Constitution, the Court explained, because a
criminal trial is not "a poker game in which players enjoy an absolute
right always to conceal their cards until played."  Id., at 82.  In a
subsequent decision, the Court described notice requirements as "a salutary
development which, by increasing the evidence available to both parties,
enhances the fairness of the adversary system."  Wardius v. Oregon, 412 U.
S. 470, 474 (1973).
    This does not mean, of course, that all notice requirements pass
constitutional muster.  Restrictions on a criminal defendant's rights to
confront adverse witnesses and to present evidence "may not be arbitrary or
disproportionate to the purposes they are designed to serve."  Rock v.
Arkansas, supra, at 56.  It is not inconceivable that Michigan's notice
requirement, which demands a written motion and an offer of proof to be
filed within 10 days after arraignment, is overly restrictive.  The State
concedes that its notice period is the shortest in the Nation.  Brief for
Petitioner 38.  This case does not require us to decide, however, whether
Michigan's brief notice period is "arbitrary or disproportionate" to the
State's legitimate interests.  The Court of Appeals found the statute to be
unconstitutional only insofar as it precluded evidence of a rape victim's
prior sexual relationship with a defendant.  Because the court expressed no
view as to the brevity of the notice period, neither do we.
    The sole question presented for our review is whether the legitimate
interests served by a notice requirement can ever justify precluding
evidence of a prior sexual relationship between a rape victim and a
criminal defendant.  The answer from the Michigan Court of Appeals was no;
it adopted a per se rule prohibiting preclusion of this kind of evidence.
This ruling cannot be squared with our cases.
    We have indicated that probative evidence may, in certain
circumstances, be precluded when a criminal defendant fails to comply with
a valid discovery rule.  In United States v. Nobles, 422 U. S. 225 (1975),
for example, the defendant wished to put on the witness stand an
investigator to testify about statements made to him during an
investigation, but the defendant refused to comply with the District
Court's order to submit a copy of the investigator's report to the
prosecution.  The District Court therefore precluded the investigator from
testifying, and this Court held that the District Court's "preclusion
sanction was an entirely proper method of assuring compliance with its
order."  Id., at 241.  Rejecting the defendant's Sixth Amendment claim, the
Court explained that "[t]he Sixth Amendment does not confer the right to
present testimony free from the legitimate demands of the adversarial
system."  Ibid.
    Even more telling is Taylor v. Illinois, 484 U. S. 400 (1988).  There,
the defendant violated a state procedural rule by failing to identify a
particular defense witness in response to a pretrial discovery request.
The trial court sanctioned this violation by refusing to allow the
undisclosed witness to testify.  This Court rejected the defendant's
argument that, under the Compulsory Process Clause of the Sixth Amendment,
"preclusion is never a permissible sanction for a discovery violation."
Id., at 414 (emphasis in original).
    We did not hold in Taylor that preclusion is permissible every time a
discovery rule is violated.  Rather, we acknowledged that alternative
sanctions would be "adequate and appropriate in most cases."  Id., at 413.
We stated explicitly, however that there could be circumstances in which
preclusion was justified because a less severe penalty "would perpetuate
rather than limit the prejudice to the State and the harm to the adversary
process."  Ibid.  Taylor, we concluded, was such a case.  The trial court
found that Taylor's discovery violation amounted to "willful misconduct"
and was designed to obtain "a tactical advantage."  Id., at 417.  Based on
these findings, we determined that, "[r]egardless of whether prejudice to
the prosecution could have been avoided" by a lesser penalty, "the severest
sanction [wa]s appropriate."  Ibid.
    In light of Taylor and Nobles, the Michigan Court of Appeals erred in
adopting a per se rule that Michigan's noticeand-hearing 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 defendant.  The
Sixth Amendment is not so rigid.  The notice-and-hearing requirement serves
legitimate state interests in protecting against surprise, harassment, and
undue delay.  Failure to comply with this requirement may in some cases
justify even the severe sanction of preclusion.
    Recognizing our prior decisions, Lucas spends little time trying to
defend the Court of Appeals' broad ruling.  He argues primarily that
preclusion was an unconstitutional penalty in this case because the
circumstances here were not nearly as egregious as those in Taylor.  He
insists that the prosecution was not surprised to learn that the victim had
a prior relationship with Lucas -- she had admitted this in the preliminary
hearing.  Additionally, he contends that his failure to comply with the
notice requirement was negligent, not willful.
    We express no opinion as to whether or not preclusion was justified in
this case.  The Michigan Court of Appeals, whose decision we review here,
did not address whether the trial court abused its discretion on the facts
before it.  Rather, the Court of Appeals adopted a per se rule that
preclusion is unconstitutional in all cases where the victim had a prior
sexual relationship with the defendant.  That judgment was error.  We leave
it to the Michigan courts to address in the first instance whether
Michigan's rape-shield statute authorizes preclusion and whether, on the
facts of this case, preclusion violated Lucas' rights under the Sixth
Amendment.
    The judgment of the Michigan Court of Appeals is vacated and remanded
for further proceedings not inconsistent with this opinion.

It is so ordered.


------------------------------------------------------------------------------
1
    The Michigan statute 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 520g
unless and only to the extent that the judge finds that the following
proposed evidence is material to a fact at issue in the case and that its
inflammatory or prejudicial nature does not outweigh its probative value:
    "(a) Evidence of the victim's past sexual conduct with the actor.
    "(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, or disease.

"(2) If the defendant proposes to offer evidence described 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 trial that may make the evidence described in subsection
(1)(a) or (b) admissible, the judge may order an in camera hearing to
determine whether the proposed evidence is admissible under subsection
(1)."

In its brief, the State lists analogous statutes in other jurisdictions.
See Brief for Petitioner 38, n. 3.





Subject: 90-149 -- CONCUR, MICHIGAN v. LUCAS

 


 
SUPREME COURT OF THE UNITED STATES


No. 90-149



MICHIGAN, PETITIONER v. NOLAN K. LUCAS


on writ of certiorari to the court of appeals of michigan

[May 20, 1991]



    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 (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, 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 4.
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 (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-andhearing requirement of Michigan's rape-shield
statute "may in some cases justify even the severe sanction of preclusion."
Ante, at 7.

------------------------------------------------------------------------------




Subject: 90-149 -- DISSENT, MICHIGAN v. LUCAS

 


 
SUPREME COURT OF THE UNITED STATES


No. 90-149



MICHIGAN, PETITIONER v. NOLAN K. LUCAS


on writ of certiorari to the court of appeals of michigan

[May 20, 1991]



    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 (1984); see Black v.
Cutter Laboratories, 351 U. S. 292, 297-298 (1956); see also K Mart Corp.
v. Cartier, Inc, 485 U. S. 176, 185 (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 1, 3, 6, 7.  In its per curiam, the state court never uses the
word "per se," never mentions the Federal Constitution, {1} 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. {2}  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. MDRV 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 6, 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  {3} because both victim and
defendant have had a prior relationship and do not need to gather
additional witnesses to develop that information, {4} 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 (1988).
{5}  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.  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 (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.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    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 crossexamination.
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.
Const., 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 (1973).  The
Sixth Amendment has been held applicable to the States.  Pointer v. Texas,
380 U. S. 400 (1965).

2
    The Court's holding is summarized in the following portion of its
opinion:
    "At the start of trial, defendant moved for the introduction of
evidence of the prior sexual relationship between defendant and
complainant.  Based solely upon the failure of defendant to comply with the
notice provision of subsection 2 of the rape shield statute, MCL 750.520j;
MSA 28.788(10), the trial court, without holding an in camera hearing to
determine the admissibility of the proposed evidence, denied defendant's
motion.  This was clear legal error.
    "In People v. Williams, 95 Mich. App. 1, 9-11; 289 NW2d 863 (1980),
rev'd on other grounds, 416 Mich. 25 (1982), this Court found the ten-day
notice provision and any hearing requirement unconstitutional when applied
to preclude evidence of specific instances of sexual conduct between a
complainant and a defendant."  160 Mich. App. 692, 694, 408 N. W. 2d 431,
432 (1987) (emphasis added).

The Court then quoted a lengthy excerpt from its earlier opinion in People
v. Williams, concluding with this sentence:

"This ten-day notice provision loses its constitutional validity when
applied to preclude evidence of previous relations between a complainant
and a defendant."  160 Mich. App., at 695, 408 N. W. 2d, at 432 (emphasis
added).

3
    In this case in particular the prosecutor did not claim surprise
because most of the excluded evidence had been adduced at the preliminary
hearing.

4
    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.

5
    "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; Department of Transportation v. Mainline
Center, Inc., 38 Ill. App. 3d 538, 347 N. E. 2d 837.)  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 . . . . )
"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 . . . . )'  43 Ill. App. 3d, at 286-287, 356 N. E. 2d, at 1277."
Taylor v. Illinois, 484 U. S., at 417, n. 23.
