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- Subject: 90-149 -- CONCUR, MICHIGAN v. LUCAS
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- SUPREME COURT OF THE UNITED STATES
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- No. 90-149
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- MICHIGAN, PETITIONER v. NOLAN K. LUCAS
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- on writ of certiorari to the court of appeals of michigan
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- [May 20, 1991]
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- 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.
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