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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.


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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.