People v. Hackett

• Decision Date: 01 February 1985
• Docket Number: Nos. 2-3,69249,J,Docket Nos. 67291,s. 2-3
• Citation: 421 Mich. 338,365 N.W.2d 120
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles R. HACKETT, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James PAQUETTE, Defendant-Appellant. anuary Term 1984. Calendar421 Mich. 338, 365 N.W.2d 120
• Court: Michigan Supreme Court

Page 120

365 N.W.2d 120

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles R. HACKETT, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James PAQUETTE, Defendant-Appellant.

Docket Nos. 67291, 69249, January Term 1984.

Calendar Nos. 2-3.

421 Mich. 338, 365 N.W.2d 120

Supreme Court of Michigan.

Argued Jan. 4, 1984.

Decided Dec. 28, 1984.

Released Feb. 1, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. Foresman, Prosecuting Atty., Michael A. Nickerson, Asst. Atty. Gen., Dept. of Atty. Gen. Pros. Attys., Appellate Service, Lansing, for plaintiff-appellant in No. 67291.

Graff & Hunt, Rex O. Graff, Jr., Traverse City, for defendant-appellee in No. 67291.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Scott Stermer, Prosecuting Atty., Michael A. Nickerson, Asst. Atty. Gen., Dept. of Atty. Gen. Pros. Attys., Appellate Service, Lansing, for plaintiff-appellee in No. 69249.

Mason & Mason by Michael A. Mason, Flint, for defendant-appellant in No. 69249.

BOYLE, Justice.

We granted leave to consider the constitutionality of the rape-shield statute, M.C.L. Sec. 750.520j; M.S.A. Sec. 28.788(10), as applied in these two cases. We hold that application of the statute in the cases at bar did not violate defendant's procedural or substantive rights. We affirm the judgment of the Court of Appeals in People v. Paquette, 114 Mich.App. 773, 319 N.W.2d 390, and reverse in Hackett.

I

Defendants in both cases challenge the trial court's application of the rape-shield statute, M.C.L. Sec. 750.520j(1); M.S.A. Sec. 28.788(10)(1), in excluding evidence of the victim's prior sexual conduct with persons other than the defendant as violative of their Sixth Amendment right of confrontation and cross-examination.

The same constitutional attack against this statute was recently addressed by this Court in People v. Arenda, 416 Mich. 1, 330 N.W.2d 814 (1982), where we upheld the validity of the statute on its face and as applied under the facts of that case. In determining the statute's facial constitutionality, the majority stated:

"The right to confront and cross-examine is not without limits. It does not include a right to cross-examine on irrelevant issues. It may bow to accommodate other legitimate interests in the criminal trial process, see Mancusi [v Stubbs, 408 US 204; 92 S Ct 2308; 33 L Ed 2d 293 (1972) ], and other social interests, see United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974).

* * *

"The rape-shield law, with certain specific exceptions, was designed to exclude evidence of the victim's sexual conduct with persons other than defendant. Although such evidence was admissible at common law in relation to certain issues, this practice has repeatedly been drawn into question. The courts, with increasing frequency, have recognized the minimal relevance of this evidence, see Anno: Modern status of admissibility, in statutory rape prosecution, of complainant's prior sexual acts or general reputation for unchastity, 90 ALR3d 1300, and Anno: Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 ALR3d 257.

"The prohibitions contained in the rape-shield law represent a legislative determination that, in most cases, such evidence is irrelevant. This determination does not lack a rational basis and is not unreasonable. In fact, it is consistent with the results reached by the judiciary in resolving this issue, see State ex rel Pope v Mohave Superior Court, 113 Ariz 22; 545 P2d 946 (1976).

"The prohibitions in the law are also a reflection of the legislative determination that inquiries into sex histories, even when minimally relevant, carry a danger of unfairly prejudicing and misleading the jury. Avoidance of these dangers is a legitimate interest in the criminal trial process, see MRE 403. The prohibition indirectly furthers the same interests by removing unnecessary deterrents to the reporting and prosecution of crimes.

"At the same time, the prohibitions protect legitimate expectations of privacy. Although this interest may not be as compelling as those mentioned above, it is entitled to consideration, see Branzburg v Hayes, 408 US 665; 92 S Ct 2646; 33 L Ed 2d 626 (1972).

"The interests protected and furthered by the rape-shield law are significant ones. Given the minimal relevance of such evidence in most cases, the prohibitions do not deny or significantly diminish defendant's right of confrontation." (Emphasis in original.) Id., 416 Mich. pp. 8-11, 330 N.W.2d 814.

In Arenda, defendant sought to admit evidence of the eight-year-old victim's possible sexual conduct with others to explain the victim's ability to describe the sexual acts that allegedly occurred and to dispel any inference that this ability resulted from experiences with the defendant. Balancing the potential prejudicial nature of this evidence, in view of the legislative purposes behind the rape-shield law, against the minimal probative value of the evidence, the Court found that the application of the rape-shield law in precluding such evidence did not infringe on defendant's right of confrontation. The Court noted that other means were available by which the defendant could cross-examine the minor victim as to his ability to describe the alleged conduct. The Court, however, left for future case-by-case determinations the question whether under different sets of facts the rape-shield statute's prohibitions would be unconstitutional as applied. Id., p. 13, 330 N.W.2d 814. The proper method by which such a determination would be made by the courts was not addressed by the majority opinion.

II

We are here faced with the task of determining the constitutional application of the rape-shield statute in two different factual circumstances. Before deciding this question, however, we find it necessary to further explicate our decision in Arenda.

The statute and its parallel provisions in the Michigan Rules of Evidence, MRE 404(a)(3), constitute a policy determination, that sexual conduct or reputation as evidence of character and for impeachment, while perhaps logically relevant, is not legally relevant. McCormick, Evidence (1st ed), Sec. 155. The protection of inquiry into privileged communication, the preclusion of hearsay, and the limitation of prior bad act evidence, MRE 404(b), are familiar examples of instances in which the admissibility of probative evidence is restricted because of a competing and superior policy. Indeed, the preclusion of specific acts of conduct, reputation or opinion as circumstantial evidence that the person whose character is sought to be shown engaged in the same conduct at the time in question was not received at common law because of its potential for prejudice, time consumption, and distraction of the fact finder from the issues. McCormick, p. 325. Stated otherwise, neither the Sixth Amendment Confrontation Clause, nor due process, confers on a defendant an unlimited right to admit all relevant evidence or cross-examine on any subject. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Cf. People v. Hayes, 421 Mich. 271; 364 N.W.2d 635 (1984).

It is equally clear that while the extent of cross-examination is within the discretion of the trial court there is a dimension of the Confrontation Clause that guarantees to defendant a reasonable opportunity to test the truth of a witness' testimony. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). ¹

By enacting a general exclusionary rule, the Legislature recognized that in the vast majority of cases, evidence of a rape victim's prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment is inadmissible. People v. Arenda, supra, 416 Mich. 10, 330 N.W.2d 814. The first purpose is simply a variation of character evidence as circumstantial evidence of conduct. The second is a collateral matter bearing only on general credibility as to which it has been held that cross-examination may be denied, United States v. Cardillo, 316 F.2d 606 (CA 2, 1963). The fact that the Legislature has determined that evidence of sexual conduct is not admissible as character evidence to prove consensual conduct or for general impeachment purposes is not however a declaration that evidence of sexual conduct is never admissible. We recognize that in certain limited situations, such evidence may not only be relevant, but its admission may be required to preserve a defendant's constitutional right to confrontation. For example, where the defendant proffers evidence of a complainant's prior sexual conduct for the narrow purpose of showing the complaining witness' bias, this would almost always be material and should be admitted. Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181, 185-186 (1981); see also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Moreover in certain circumstances, evidence of a complainant's sexual conduct may also be probative of a complainant's ulterior motive for making a false charge. State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976); State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981). Additionally, the defendant should be permitted to show that the complainant has made false accusations of rape in the past. People v. Werner, 221 Mich. 123, 127, 190 N.W. 652 (1922); People v. Mikula, 84 Mich.App. 108, 115-116, 269 N.W.2d 195 (1978); State ex rel. Pope v. Mohave Superior Court, supra, 113 Ariz. 29, 545 P.2d 946.

The determination of admissibility is entrusted to the sound discretion of the trial court. In exercising its discretion, the trial court should be mindful of the significant legislative purposes underlying the rape-shield statute and should always favor exclusion of evidence of a complainant's sexual conduct where its exclusion would not unconstitutionally abridge ...