Lonnie K. Stephens v. Charles B. Miller, Warden, and Attorney General of the State of Indiana

Inc., Communications, involving World matters over Commission cations 468, 104 S.Ct. Such interference]. frequency RFI [radio (1984). or regulated local not be shall matters ap- transmitting law, radio nor shall state reasons, judgment of foregoing For the regula- subject local or state paratus be is affirmed. district court an RFI any to resolve effort part of tion as ra- believe Conferees The complaint. not be should operators transmitter

dio forfeitures, liabili- fines, or other subject to authority or state by any local

ty imposed appearing in interference of as a result systems. equipment electronic

home regula- intend that Rather, the Conferees imposed shall be phenomena

tion of RFI STEPHENS, Petitioner- by the Commission. K. Lonnie Appellant, 2237, 2277. Cong. & Ad.News 1982 U.S.Code pronounce- congressional explicit such Given plaintiffs’ state ments, of enforcement Warden, MILLER, the ob- B. frustrate Charles action would nuisance law Attorney of of the State Accordingly, the district General Act. jectives of Respondents-Appellees. Indiana, Rule granted defendants’ properly court 12(b)(6) motion. No. 91-1690. however, not, left are plaintiffs radio their Appeals, in which raise of a forum Court without United States The resi complaints. frequency interference Circuit. Seventh complaints, informal written may lodge dents Argued Sept. 1992. and dura setting the nature forth specifically interference, the Gotham tion 26, 1993. March Decided office, stations, field the local FCC Tower Sept. En Bane Reargued Bu Media of the Mass FM Branch and the Calvary Application Re See In reau. 6, 1994. Jan. Decided Network, Inc., Broadcasting Educational action (noting FCC F.C.C.R. filing by local residents more

followed blanketing interference nine hundred

than § 1.41 complaints); C.F.R. any deny petitions file also residents filed with applications

license or renewal stations. Gotham Tower

FCC (1992); 309(d); § 73.3584 § 47 C.F.R. U.S.C. Calvary Edu Application

see also Re Network, Inc., 7 Broadcasting cational (1992) (designating station’s

F.C.C.R. 4037 for eviden renewal license

application for peti filed hearing after local residents

tiary steps, taking such After deny).

tions to opportu

moreover, plaintiffs will have review of their court

nity federal pursue Act, parties aggrieved

claims. Under and orders of of decisions

may seek review Ap States in the United

the FCC Circuit. District Columbia

peals for the 402(b); v. ITT FCC § see also

47 U.S.C.

Robert G. (argued), Forbes Forcum & Forbes, IN, City, Hartford petitioner- for appellant.

Linley Pearson, Gen., E. Atty. Matthew R. Gutwein, Carter, Atty. Pamela Asst. Gen. (argued), Lupton, Suzann W. Office of the to the bath- Stephens went IN, respond. did not Indianapolis, Gen., Litigation, Fed. Atty. returned, angrily told and, he when room respondents-appellees. the others to him about she lied Wilburn POSNER, Judge, Chief down on her Before He threw being in the trailer. CUDAHY, BAUER, CUMMINGS, mouth with his her and covered couch the EASTERBROOK, FLAUM, screaming. COFFEY, Ste- from prevent her hand to KANNE, Wilburn’s, MANION, and against RIPPLE, body pressed his phens from her ROVNER, Judges. bra, a button and tore Circuit her undid to undo Next, down Stephens reached shirt. BAUER, Judge. Circuit off of Stephens pushed pants. Wilburn his screaming the bedroom into and ran her whether to decide requires us ease This brother-in-law. by her sister and occupied of his con- deprived Stephens Lonnie K. an Indiana testify when right to stitutional nearby door to ran out the Stephens Rape Statute Shield Indiana’s applied court friends, and Lisa Strait. Jeff home his that certain statements to exclude he had been that Stephens told Straits during the events he made claims Stephens Later, Stephens told Pac Pic a Store. a local Stephens was conviction. to his that led officer who police that same Indiana attempted rape and convicted Stephens directed investigated the incident. Ste- his conviction. affirmed Supreme Court asked, that Stone if say, he were to Stone (Ind.1989). State, 544 N.E.2d phens v. trial, a Pac. At at the Pic dropped him off of habeas for writ Stephens filed petition story, then Pic a Pac repeated the first Stone pursuant court district in the federal corpus that he on cross-examination admitted court de- The district § 2254. to 28 U.S.C. Stephens off at Wilburn’s trailer. dropped Morris, 756 Stephens petition. his nied the Pic a told he also admitted Stone (N.D.Ind.1991). ap- Stephens F.Supp. from Ste- to story pursuant directions Pac peals. phens'. painted a and at trial Stephens testified I. evening’s picture quite different invited him Lonnie that Wilburn He claimed of March night events. On the him dropped off. trailer. Stone trailer after Wilburn’s into her Stephens went Melissa. vastly he entered told that when trial, Stephens stated Stephens and Wilburn At asleep on trailer, after son was happened what about Wilburn’s different stories , eve- him to one of that carried Stephens The events couch. Stephens arrived. explained that her David Stone Stephens and bedrooms and Wilburn began ning after brother-in-law, their child were Stephens sister, and drove drinking. Stone finished slept All three asleep him off. Ste- the bedroom. dropped and also trailer Wilburn’s trailer. as casu- visit to the Ste- through Stephens’ other knew each and phens Wilburn room, living asleep on talked in phens and Wilburn was Wilburn acquaintances. al kiss arrived, Stephens he could her. her sister told and Wilburn Stephens when couch another, according to guest Ste- asleep thing in the were One led and brother-in-law up on ended nephew were the two of them phens, son room. Wilburn’s until engaged consenting adults floor as two bedroom. asleep another intercourse. Wilburn, lock she According did proof in an offer stated Stephens asleep. awoke and She fell door before she doggy “doing it fash- were two of them door standing in front Stephens found it you like “[d]on’t said to her ion” when he next down Stephens sat the trailer. inside you did.” Tr. Tim Hall said this? ... like Wilburn attempted to her. kiss Wilburn that he said Stephens also asserted asleep were the others Stephens of who told “switching part- something Wilburn about her sister. out for and called trailer court excluded The trial moment, Tr. 1276. ners.” but, con- after a Stephens hesitated the Indiana pursuant these statements yelled one Wilburn tinued his advances. § 35-37-4— Ind.Code Rape Statute. again Shield sister, but her sister her time for more did, — however, 4.1 The court Stephens allow state McGuire, laws. Estelle v. U.S. said something he -, -, Wilburn 116 L.Ed.2d angered her and led (1991); her to fabricate Clark, Reed 984 F.2d attempted rape (7th charge. Cir.1993). Stephens testified We ask whether Indiana statements, that after he made these Wilburn Stephens denied rights under the Consti stop ordered him to tution, laws, leave. or treaties of the United States. — asked, claimed that Estelle, he did as got she at -, 480; 112 S.Ct. at dressed, Reed, and left. 984 F.2d at 210. We therefore will not consider the merits of his claim that guilty returned a verdict Indiana courts misapplied their own law. Stephens on attempted rape charge. Supreme The Indiana Court affirmed his conviction and the district court denied B. his Constitutionality the Rape Indiana of

petition for corpus. writ of habeas Shield Applied Statute as Here Stephens challenge does not the facial II. constitutionality of the Indiana Rape Shield Stephens contends that the Indiana trial Statute, good and for reason. In Moore v. court erred when it proffered excluded the Duckworth, (7th Cir.1983), F.2d 1063 we First, testimony. argues he that the court upheld validity the facial of the Rape Indiana misapplied Rape the Indiana Shield Statute. Still, Shield Statute. although principle Second, Stephens claims that ap- court’s shield statutes has been held consti plication of the Rape Indiana Shield Statute tutional, by both this court Supreme and the violated his right testify constitutional Lucas, Court in Michigan 145, v. 500 U.S. his own Finally, Stephens argues defense. 1743, (1991), 114 L.Ed.2d 205 that the excluded should be admis- constitutionality of the law as applied re gestae sible as the res attempted rape. subject mains on a examination case by Acevedo, case basis. Sandoval 996 F.2d Application A. Rape the Indiana Shield — 145, 149 (7th Cir.1993), denied, cert. U.S. Statute under Indiana Law -, 307, (1993). S.Ct. 126 L.Ed.2d 255 Stephens’ first contention need not Stephens claims that Indiana unconstitution detain long. argues us He ally that we should applied Rape its Shield Statute in this grant petition his Indiana trial case. His primary argument is that Indiana court and Supreme the Indiana misap denied him his constitutional to testify plied the Rape Indiana Shield Statute under in his own defense when it did not allow him be, Indiana may law. That but whether the events, tell his version of the in their Indiana correctly applied courts their entirety words, own and in his own about what is, by itself, law no concern of happened ours. Federal on March 1987 at Melissa Wil habeas actions do not lie for mere errors of burn’s argues trailer. Rape 1. The provides, admitted, Indiana may Shield Statute may not be nor reference be made pertinent part: presence jury, evidence in the except provided as chapter. in this ( n ) prosecution In a for a sex crime as defined (b) (a), Notwithstanding subsection evidence: in IC 35-42-4: (1) of the past victim's or a witness's sexual (1) evidence of the past victim's sexual con- defendant; conduct with the duct; (2) specific which ain instance of sexual activ- (2) past evidence sexual conduct of a ity person shows that some other than the accused; witness other than the upon defendant committed the act which the (3) opinion past founded; prosecution evidence of the victim's sexual or conduct; (3) pregnancy that the victim’s at the time of (4) defendant; opinion by trial was not caused past sexual con- finds, judge be accused; introduced if the duct under of a witness other than the procedure (c) provided in subsection of this sec- reputation past evidence of victim's tion, that it to a is material at conduct; fact issue in the sexual ( n ) reputation case inflammatory prejudicial and that its or past evidence of the sexual con- outweigh nature probative does not its value. accused; duct of a witness other than the 35-37-4-4(a) (b). §§ Ind.Code here, and, attempted as deserve constitu- violated federal Indiana court protection surprise, heightened about it excluded statements tion when harassment, unnecessary invasions part- intercourse “doggy fashion” at -, -, Lucas, privacy. switching. ner pro 1746. These statutes also S.Ct. interpreted Supreme Court has against surprise prosecution. Id tect provide a criminal defen the Constitution to statutes, imposed rape shield Restrictions dant, Stephens, implicit like especially they criminal relate to a defen testify or own defense. United in his her not, however, testify, may right to dant’s — U.S. -, -, Dunnigan, States v. arbitrary disproportionate purposes (1993); 122 L.Ed.2d S.Ct. Id.; Rock, designed they are serve. Arkansas, 483 Rock U.S. Rather, purposes of For required to evaluate whether the state is one, proceedings, like this state criminal justify limita served the rule interests out of arises the Fourteenth imposed on the criminal defendant’s tion Clause, Due Process which Amendment’s testify. Id deprive shall ... provides that State “[n]o ease, give Stephens allowed to this was life, liberty, any person property, or with facts, except his version of the for the entire law,” process out due U.S. Const. Amend. The al excluded evidence. Indiana court right testify is found in XIV. The to also testify Stephens jury lowed to in front guarantee that Amendment’s all “[i]n Sixth something he said to Wilburn that an that enjoy prosecutions, the accused shall criminal gered her caused to fabricate the and her compulsory process right ... to have for rape charge. noth attempted The court did obtaining favor.” witnesses U.S. ing arbitrary disproportionate pur or “necessary It Const. Amend. VI. is also a Rape poses the Indiana Shield Statute guarantee corollary” of the constitutional it designed “dog to when serve excluded the Rock, testimony. against compelled 483 U.S. gy “partner switching” fashion” and state 52, “necessary at 2709. This at 107 S.Ct. Rape The Indiana Shield ments. Statute corollary” is derived from the Fifth Amend just prevent was enacted to this kind of person ... “[n]o ment’s mandate that shall generalized inquiry reputation into any compelled in criminal case to be a wit past conduct of victim to sexual order ness himself.” U.S. Amend. V. embarrassing subjecting avoid her and her to right to A criminal defendant’s testi possible public denigration. Tague v. Rich however, fy, not unlimited and bow (7th Cir.1993) ards, 1133, (citing F.3d 1139 3 legitimate accommodate other interests State, 927, (Ind.App. 929 Kelly v. 586 N.E.2d Lucas, process. 500 the criminal U.S. 1992) State, 681, v. 471 and Thomas N.E.2d 1746; Rock, at -, 111 483 at S.Ct. U.S. (Ind.1984)). application Its 683 exclude 55, is, example, at 2711. There for 107 S.Ct. “doggy here to fashion” sexual references right perjury. no constitutional commit partner switching intercourse and effectuate — -, Dunnigan, 113 S.Ct. at purpose. properly its The Indiana trial court Furthermore, procedural numerous right testify Stephens’ balanced with evidentiary pre and rules control the state interests it allowed him to Indiana’s and not sentation of evidence do offend testify happened and said about what that he Rock, testify. criminal defendant’s something upset Wilburn. Consti 11; 11, 2711 at 55 n. 107 n. 483 U.S. S.Ct. requires in no more than this. The tution 302, 284, Mississippi, 410 U.S. Chambers Rape terests served Indiana Shield (1973). 35 L.Ed.2d very justify imposition minor on Statute testify. into the cate Rape shield statutes fall evidentiary and gory Stephens re note also that Wilburn procedural rules We drastically hap- of what Rape told different stories ferred to Rock Chambers. statutes, Indiana’s, represent pened Stephens David directed like perjury. to commit was enti- legislative valid that victims of Stone determination tied to credit story, Wilburn’s discount Ste- held gestae that res is a concept any account, phens’ guilty and return a verdict. significance. constitutional Other federal Testimony alleged about Wilburn’s courts have phrase described the gestae res preferences pur- useless, served no other harmful, as inescapable almost pose than to embarrass and humiliate her. of a Melton, definition. Williams 733 F.2d Accordingly, the Indiana trial court properly 1492, (11th Cir.), denied, cert. 469 U.S. balanced the state’s 1073, interests with (1984); when it excluded the testimo- States, Wheeler v. United 211 F.2d 23 n. ny at issue here. (D.C.Cir.1953) (quoting 6 Wigmore 1767), § denied, cert. Stephens deprived of his constitu- 98 L.Ed. 1140 See also State v. tional testify. Hafford, (Me.1980) A.2d 220-21 (continued use of gestae C. Res the term inap Gestae res propriate law). under Maine Simply put, as argument: raises one other matter, a federal catchall, old ges- “[t]he ‘res the excluded was evidence tae,’ longer is no part of the law evidence.” concerning gestae the res of the offense and (3d Miller v. Keating, 754 F.2d therefore should have been admitted. Liter Cir.1985). ally done,” thing “the gestae the res of a particular offense under Indiana law is ad We observe purposes missible and is defined as hap evidence of law, Constitution and federal the term res penings near in place time and which com gestae significance. is without Indiana and plete State, of a crime. Atkinson v. are, course, other states free keep (Ind.1991); 581 N.E.2d Beatty v. gestae res concept part of their law of State, 1134, (Ind.1991). 567 N.E.2d 1136 here, evidence. But said, as we have we ask problems There are two res only whether the Indiana court denied Ste- gestae argument. phens any right guaranteed himto the Constitution. It did not.

First, accept Stephens’ we do not res gestae argument because to do so would ef III. fectively gut rape shield statutes and violate principle established in Lucas. If Ste Nothing in the Constitution prohibited the phens’ gestae res argument correct, were as a exclusion of at issue in this law, matter of constitutional criminal defen case. The district deny court’s decision to always dants could rape circumvent shield Stephens’ petition for writ of corpus habeas by claiming they statutes something said is therefore in place near time alleged and rape attempted rape about Affirmed. past the victim’s

history or reputation. FLAUM, Judge, concurring. Circuit

Second, Stephens nothing, offers probably exists, nothing support This case forces us to confront the extreme gestae argument his res as a constitutional tension if outright not the conflict between a fact, violation. the use the term res criminal defendant’s constitutional gestae, purposes law, of federal is present essen in his own and a defense1 tially obsolete. Federal Rules of state’s “sovereign prerogative” regulate Evi dence, 1976, adopted in govern evidentiary presentation of evidence in its courts. questions court, and, in federal signifi Peters, more Cunningham 535, See v. 941 F.2d 538 — cantly given here, (7th the issue no court Cir.1991), denied, has ever -, cert. U.S. Arkansas, 1. In Rock v. Supreme Amendment, Court ex- Clause of the Fourteenth a "neces- plained testify that "[t]he sary corollary" on one's own guaran- to the Fifth Amendment's behalf at a criminal trial has in compelled sources several tee testimony, and also is provisions 44, 51, of the Constitution.” Compulsory 483 U.S. found in the Process Clause of the 2704, 107 S.Ct. 51-53, 2708 Sixth Id. at Amendment. 107 S.Ct. at "necessary ingredient" is a Due Process 2708-2710. 1004 Supreme relevant (1992) I believe that the (quot While 1484, 626 117 L.Ed.2d 112 S.Ct. indi precedents 482, Chrans, 484 and Seventh Circuit F.2d Court 844 v.

ing Johnson 835, denied, rape shield statute typical 109 (7th Cir.), 488 U.S. cate that cert. attack, Though the in this case L.Ed.2d 71 (1988)). we 95, facial should survive 102 S.Ct. constitutionally in one’s it is whether right to relevant consider must dimension, it is rape is of constitutional Indiana shield apply own behalf permissible “may, appro and giving not without limitation2 from a defendant preclude statute legit other cases, accommodate bow to priate the events exposition of his full version process.” in the criminal interests imate he was ac surrounding crime which (1987) 55, 107 at 2711 Rock, at 483 U.S. Richards, See, 3 F.3d Tague v. e.g., cused. Mississippi, 410 U.S. (quoting Chambers (7th Cir.1993); v. Aceve 1133, 1137 Sandoval 1045, 1038, 297 295, 35 L.Ed.2d 93 S.Ct. (7th Cir.), do, cert. de 996 F.2d must (1973)). that we question The difficult — -, nied, 114 S.Ct. rape the Indiana today whether resolve occasions, (1993). On several L.Ed.2d ability pres statute curbs shield balancing test for has endorsed the Court evidence. arguably relevant ent government’s between resolving conflicts evidentiary rules maintaining its statute undoubt rape shield interest The Indiana interests, presenting in rele important state accused’s interest edly advances Rock, See, (1) e.g., victims defense. cluding protection vant evidence 2711; Davis v. at humiliation 107 S.Ct. public embarrassment 483 U.S. from past Alaska, sexual con of their through exposure Chambers, (2) (1974); at duct, focusing of the fact-finder’s L.Ed.2d Johnson, alleged 1045; actions on the defendant’s tention U.S. at out, collateral away marginally Cudahy points relevant Judge from 484. As F.2d at encouragement of issues, and striking balance should this “our efforts Further, has this court reporting victims. Supreme Court guidance sensitive to validity of the Indiana Post, (Cudahy, facial upheld the at 1012 provides.” precedent Duckworth, statute, see Moore Unfortunately, when one J., dissenting). ex (7th Cir.1983), although the F.2d Supreme Court authori relevant amines yet confronted has not Supreme test, one must con mandating balancing ty has issued the Court squarely, question a yet has to formulate the Court clude that indicating rape that shield stat strong dicta determining gov a when clear standard challenges. facial probably survive utes sufficiently important interest ernmental 145, -, Lucas, Michigan 500 U.S. v. See present in interest outweigh the accused’s (1991) 1746, 1743, 205 114 L.Ed.2d 111 S.Ct. Larsen, L. testimony. See Joan ing relevant of defen of evidence (holding preclusion that Prejudice, and Propensity, “Of Comment conduct with the vic past sexual dant’s own Use of Excul Meaning: The Accused’s Plain comply tim, failure to of defendant’s the Need and patory Specific Acts Evidence of notice-and-hearing requirements 651, 404(b),” Nw. 87 U.L.Rev. Rule to Amend statute, per a was not Michigan’s rape shield (1993). Hence, we must infer 675-676 Amendment). In of Sixth se violation appropriately balances that approach rape Lucas, Michigan’s noted that the Court in at stake this case. competing interests legislative a valid “represents shield statute of a well-defined Recognizing the absence deserve victims determination that standard, the Court’s recent I that believe surprise, protection heightened and anal- involving rape statutes shield cases harassment, unnecessary of invasions and jurispru- of Amendment ogous areas Sixth at -, at 111 S.Ct. U.S. privacy.” Id. 500 contraction of the toward a dence incline id. 500 U.S. (majority opinion); see also 1746 and the present evidence (Blackmun, J., unfettered -, at 1749 at 111 S.Ct. In confrontation. closely of related concurring). 836, 860, Stevens, Craig, Maryland 497 U.S. accompanying in text and 3 2. But see note infra 3171, 3157, dissenting opinion Sca discussing lia, of Justice 111 110 S.Ct. Marshall, Brennan, joined by Justices Lucas, operation the Court noted that the of Whether a state justify interest can a limi procedural provision Michigan’s a of upon tation a defendant’s present presentation shield statute exclude the relevant depends evidence upon the relative necessarily relevant evidence is not unconsti weights of the interest and the evidence. A though tutional even it in effect diminishes may state not “mechanistically” apply its evi- ability the defendant’s to confront adverse dentiary deprive rules to the defendant of a present witnesses and a defense. See trial, fair and “critical” may evidence not be —, U.S. S.Ct. at 1746. While the Chambers, 302, excluded. 410 U.S. at long Court has recognized that Sixth Amend S.Ct. at 1049. As the Court stated United rights interpreted ment “must be in the con Valenzuela-Bemal, States v. evidence is text of trial necessities and the adver “critical” if material, it is “relevant and sary process,” Maryland Craig, 497 U.S. ... vital the defense” degree to a suffi 836, 850, 110 S.Ct. 111 L.Ed.2d cient to establish that the exclusion of the (listing eases which in states’ evidence could have orderly terests in procedures “affected the outcome not did defendants’ rights), 867-868, violate trial.” 458 Sixth Amendment U.S. recently has relied on articu 3446-3447, (1982) (ci 73 L.Ed.2d 1193 state lated interests external to the trial omitted) (emphasis tations in original); see process uphold a scope limitation on the Israel, also Sharlow v. 761 F.2d 377-378 presentation a defendant’s at tri (7th Cir.1985), denied, cert. 475 U.S. Craig, al. In sharply a divided Court held (1986) (hold 89 L.Ed.2d 324 Confrontation Clause of the Sixth ing that evidentiary state (hearsay) rule Amendment did categorically prohibit not a “mechanistically” applied because the child witness in a child 'abuse case from testimony excluded was not “critical” to the testifying outside the defendant’s physical defense). recently, More the Court has indi presence by one-way closed circuit televis cated that state restrictions on an accused’s Id. at ion.3 Craig 110 S.Ct. at 3167. “may not defense be arbi directs us to applying ease-specific continue trary disproportionate purposes test, balancing and it indicates policy they Lucas, designed are to serve.” process,

interests external to the trial such at -, Rock, (citing by rape statutes, those embodied 2711). outweigh, my S.Ct. at cases, judg some select limited completely application defendant’s ment the unfettered Sixth shield stat rights.4 Amendment ute in likely this case neither affected the Scalia, Brennan, joined by 3. Justice Justices rights. statutes restrict these But ours is a Marshall, Stevens, strong view, wrote a judiciary, dissent hierarchical and Justice Scalia’s Craig began appeal, Thus, as follows: prevailed. its whatever has not Court, guidance until we receive further from the Seldom has this conspicuously Court failed so we apply must endeavor to define and a standard categorical guarantee to sustain a of Con- the that competing the balances interests. against stitution prevailing of the tide current opinion. provides, The Sixth Amendment Alaska, 4. In Davis clarity, unmistakable “[i]n that all criminal (1974), L.Ed.2d the Court balanced a prosecutions, enjoy the right accused shall the criminal defendant's to cross-examine ad ... to be against confronted with the witnesses against verse witnesses a interest státe external purpose him.” enshrining protec- of this preserving to the process namely, the ano — tion in the Constitution was to that assure nymity juvenile of The Davis offenders. many none of the policy interests from time to balancing the resolved of interests in favor of the pursued by statutory time law could overcome defendant’s to cross-examine. The case at a defendant’s to face his or her accusers bar Craig is to both similar Davis and in that the in court. sought per in all statutes three cases to shelter 860-861, (Scalia, 497 U.S. at 110 S.Ct. at 3171 legislature sons the particularly whom deemed J., dissenting). approach Scalia’s victims, offenders, Justice textual (rape juvenile vulnerable obviously has considerable force victims) would elim- child abuse from further trauma and difficulty applying murky inate the of However, balanc- Craig embarrassment. this case and ing employ test we now must to resolve conflicts important an additional state interest— rights a between defendant's and to reporting prosecution of sex offenses — cross-examine and the witnesses state not various found in Davis. teach- er, further are benefitted until we fairly be la- could trial nor of the outcome Court, that I conclude Supreme ings of the to the arbitrary disproportionate or belled conducted. inquiry that should be High light this is of the purposes of the statute recent decisions. Court’s majority’s case, adopt the I cannot In this question Ste- real that no There can be application of the that characterization reputa- testimony about the proposed phens’ “very minor statute constitutes rape shield the victim is practices of past tion and testify.” Stephens’ right on imposition are statutes rape shield of the kind that Nevertheless, accept I that Ante at can there be Neither exclude. designed to ex- appropriately Stephens’ was testimony in proposed that any doubt not suffi- was because the cludable Stephens’ effort case was linked this outweigh ciently defense central credibility, in- an complainant’s challenge the First, I do by served statute. interests constitutionally enti- was quiry to which he Chambers, where case akin not this find for such an opportunity But while the tled. hearsay rule invalidated a the Court toto, it is him in may not denied attack introducing evi- from the defendant barred Craig and Lucas the that after to me clear that, believed, necessarily would if dence regulate may circumstances in limited State Here the exculpated the defendant.5 I must From this the assault. the breadth of been the basis evidence could have excluded particular laws in rape shield conclude defense, helpful of an inference of judicial imprimatur carry implied now shown to be connected but it was pivotal undoubtedly represent a approval and degree suffi- guilt innocence to issue circumscription of a crim- legislatively-driven impacted that its exclusion cient to establish evi- right to muster relevant inal defendant’s ability to set out his version cause. for his dence affected the outcome thus events and Second, impeach able to Nonetheless, jurispru- trial. if constitutional sugges- rubicon, complainant’s credibility with legal it must this has crossed dence him, is, angry with have been tion that she resting place. That principled at a settle he would have although not the detail acknowledged that a defendant’s it is once Furthermore, my opinion this loss boundless, one is liked. is not right to tell his significantly the did not constrict of detail broad and elemental compelled to seek Even if be- vitality Stephens’ defense. inviolate. As this that are contours of lieved, testimony, proposed while rele- matter, that a defen- apparent it is an initial bias, hardly of the sort that to vant to opportunity witness be denied dant cannot that the persuasive evidence facts com- constitute operative elicit the core Any link story. case, concocted her complainant In a theory of defense. prise his and a decision Stephens’ comments of between asserts defense where the defendant charge of complainant fabricate consent, certainly would center this essential conjectural. regard, merely arguably manifest facts that include both the noteworthy Stephens did not I find it the credibili- that diminish consent those impact potential attempt to lessen the inculpatory evidence accumulated ty of testimony by proffering More, excluded germane to loss the defendant. com- of the controversial versions case, principle, is the modified this but related given have an effort Such opportunity to de- ments. notion that a defendant’s proposition that support meaningful also the only rudiments but velop not vital to his comments precluded were cramped as story cannot be so details of his possible on the The decision rest defense. of its his defense drained effective- to leave suggest judge not of the does essen- error Ascertaining which details are ness. significance of over the admittedly may an intense concern case particular tial testimony. Howev- exacting imprecise and examination. critical, therefore could Chambers, patently was consisted dence excluded evidence

5. person to murder by another of a confession not be excluded. This evi- was tried. for which the defendant analysis, In the final reviewing after 1006. As the opinions suggest, numerous given by direction contempo- the statute and balancing weighty those interests law, rary specific case under the circum- state’s interest in excluding testimony case, I stances am constrained to makes very for difficult case. concur in the decision to affirm the district not, view, But this my case does actually any court and cabin inclination to chart an- troubling raise questions because, such under other constitutional course. Stephens’ theory case, own the evi- ROVNER, ILANA DIAMOND Circuit dence neither was central to his defense nor Judge, concurring. purpose offered for the of impeaching Wil- Contrary my burn. colleagues’ assump- Although opinions several of the in this tion, Stephens did not offer the evidence to quite case are compelling in their discussion support theory fabrication, issue, only but of a difficult constitutional doI explain why Wilburn had they pre- believe that actually address the withdrawn her ease viously-given before us. I consent. separately therefore write His reference to explain my of the issue pres- during view this case excluded comments closing argu- one, add, I that hasten raises less ment makes that clear:1 ents — weighty constitutional concerns than those says, something said, Lonnie that he she my colleagues (cid:127)with which struggled. told stop, stopped. him he She told him to My colleagues’ opinions all start from the leave, he left. premise that offered the excluded (Oct. 23, 1987, 58).2 Tr. at Although Ste- for purpose impeaching phens argue did witness, complaining Wilburn had invented They Melissa Wilburn. charges, his fabrication Stephens’ theory theory assume to have was not been that related to anger, the offensive Wilburn’s angered statements so but in- Wilburn focused prompted she was stead on placate her desire to landlady’s fabricate the her charge of attempted rape. Plurality Op. See concerns about disturbance had 1001; J., Flaum, at concurring, 1006-07;' at transpired. lawyer argued As his in closing: J., Cummings, 1009-10; dissenting, at Cu- talking [W]e’re two about a half hours J., dahy, 1011; dissenting, J., at Coffey, dis- explanation and an why finally she did 1018; J., senting, at Ripple, dissenting, at report police. it to the Because she want- 1020-21, 1023. The content of the remarks ed to get landlady, out of trouble with her important therefore because the landlady landlady whether her ... her is a would have fairly been unable to assess Ste- person, nice she’s not going to throw some- phens’ theory knowing without whether the body just out somebody attempted sufficiently comments were inflammatory to me, way phrased but the she it to cause such a reaction. Based on this under- her, you it, have to control Melissa be- standing, argued dissenters have lieved something, she had to do she has to denying Stephens opportunity something lady, do my to show this it’s not significantly has interfered fault. Glenn Wilburn was there and that’s rights. has, with his constitutional He they the reason came down so I’ll do some- view, their prohibited been offering from evi- thing, go I’ll make the report. goes defense, dence that to the heart of his he has been denied his to confront (Id. 60.) at J., adverse Cudahy, See witness. dissent- ing, J., 1012-14; Ripple, at dissenting, significantly, Even more offer of 1020-21, 1023; Flaum, J., concurring, proof theory.3 reflects the same Outside the cf. mad, lawyer theory did not set out his upset, cause she she was her sister is during opening argument, the case rely solely so we must she talks someone to.... closing argument. on his (Id. 63). Stephens' 2. lawyer pur- also alluded to Wilburn's arguable Stephens' approach 3. It is least that ported anger closing argument: in his later closing testimony was determined after says they stayed up, She that she was fearful of back, coming got Mary Riley him up she be- know, honor, I’m you your But lawyer [Defense]: elicit- Stephens’ jury, presence of the anything bring up I cutting it off before testimony from his client: ed say but I even can’t about evidence I exactly what I said but said, say I I can’t that, something that made her you say did effect, doing we was something said point that out angry? I can’t even that, Tim Hall and referred to it and I said them? they, I had mentioned that Drema and get point when Then to the [Prosecution]: switching partners something them about angry and he left. got she was, we was it was the fashion and she (R. offensive what doing it and 1277.)4 I said and comments, Stephens continued: After she didn’t stating she told me particularly content quit. care for of the she done. [Prosecution]: gets mad ^[*] We’re and ^[*] he’s at the ^[*] leaving point where ^[*] so we’re * * said, say?” And I you “What did And she added). 1279-81) (R. It thus (emphasis was said, I meant she asked me what and only purpose of that the all clear to said, “Stop,” told her and she and I that why had testimony to show Wilburn was said, stopped and she I that’s when and during At no time consent. withdrawn her exactly my house.” That’s out of “Get the evidence Stephens suggest that did trial Iwhat said. theory of fabrica- support a relevant was tion.5 1278.) (R. testimony again Ste- reflects This had moti- theory the comments phens’ argu- in his Stephens suggested Nor has consent. to withdraw her

vated Wilburn testimony court that ment before this before the significance. His had that brief at- colloquy subsequent between stated: banc court en indicates torneys and the court also resulting that the offered Stephensf] comments Wilburn’s is contention theory concerning res testimony under anger were relevant is evidence why had withdrawn explain Wilburn It offered gestae offense. was place him leave: and asked at the time her consent what occurred show past what the alleged offense not of the further would like no We [Prosecution]: prosecutrix had been. of the sexual conduct the conversa- toward questions directed 5) tion, now. misleading, (emphasis twice that’s Banc Br. at (Stephens that’s En Indeed, Stephens’ to the original). answer sus- further Right, the Court will [Court]: rehearing explicitly denied petition for state’s know, that, you up point, tain it’s in order testimony had been offered that the you point ask you get to that before when had a motive that Wilburn to demonstrate know, then, you was said next what rape charge: attempted fabricate the know, you was prove, coming up to offer pur- has mischaracterized do State you stopped. [T]he Let’s reason there some testimony. While the excluded pose of the you get into those prove before the offer to important just have been leading up we’re statements alleged victim’s showing the source of the cutting right off. him why prose- excluded, sug- another reason proof that there was but the had been offer charges against the cuting witness had filed theory consistent gests defense necessary to com- it was defendant throughout trial. plete the events. version of defendant's theory was of course But that first mention page numbers in are to 4. Record citations A defen- bring late to it into consideration. too court state record. admitting one reason dant cannot advance wholly during trial and then advance to that rationale for allude did post-trial submis- separate admission in basis for post-trial to Correct Er- "Motion first time in evidentiary appeal. rationale on An sions or stated: which rors/' ruling judge time of at the raised before the Biesiadecki, 933 F.2d States v. waived. United purpose offering such behind Cir.1991). (7th theory 544 & n. 1 support the tend to that would it anger toward the defendant and thus her her consent. That does indeed seem a more underlying fabricating motive for imposition” “minor than the my one col- defendant, charge against leagues it is undenia- have discussed. It goes neither precipitating ble event for the the heart Stephens’ defense nor limits his filing of charge something ability else to confront adverse witnesses. entirely. It undisputed alleged is that thé introducing interest in the testi- reported victim attempted rape an by the mony for the purposes limited that he envi- in placate defendant order to landlady her may, view, my sioned in properly be subordi- upset who was police had been nated to the State’s interest in excluding the Furthermore, called to the trailer.... in I evidence. therefore concur in the decision Brief, Reply [his] the defendant stated the to affirm the district court’s denial of Ste- following: primary “The relevance of the phens’ petition. excluded why is that it shows Stephens Wilburn ordered from her trailer

and awakened her sister.” CUMMINGS, Judge, joined by Circuit While the ^[*] primary ^{[*] [*]} purpose of the offered ^{[*] [*] [*]} dissenting. CUDAHY and MANION, Circuit Judges, testimony was made clear in the brief of Stephens Lonnie claims that on night the defendant and then made even of March he made comments to the abundantly Brief, more in Reply clear complainant that caused her to end their Supreme Court of Indiana chose to encounter, consensual sexual Stephens send ignore those assertions and state that the immediately home, sister, from her wake her statements made the defendant to the and the day groundless next charge file a alleged victim angry so “made her she offending attempted rape. The content of the pursued the attempted rape charged cornerstone tement-a of Ste sta against him.” phens’ presented case—was never (Answer 6-7) (foot- (emphasis original) in jury, judge the trial having ruled that omitted).6 note and citations proposed testimony was barred my noted, colleagues As Rape Statute, have the constitu- Indiana Shield Ind.Code Ann. analysis tional (Burns 1985). in requires § this case us to 85-87-4-4 The exclusion of balance the state’s in excluding interest indisputably gives rise to a evidence testimony against Stephens’ interest its colorable application claim that of an analysis admission. The depends rule, therefore evidentiary statute, has entirely on the purpose for which thé testi- interfered pres with the defendant’s mony was offered. Fortunately, we need not ent his defense. presents When defendant whether decide excluding claim, evidence offered to such a colorable the task of the court show that the complaining lying witness was exculpatory is to import balance the only question unconstitutional. The raised excluded evidence the interest of the is whether here should have been state manifested in the rule at issue. See allowed to introduce Charns, (7th otherwise inadmissible Johnson v. F.2d Cir.), order precise to show the denied, con- certiorari 95, 102 tent —rather than the general (1988); nature —of a S.Ct. McMorris v. prompted Israel, (7th comment that Wilburn to Cir.), withdraw 643 F.2d certiorari suggests The same impeach- brief later why that the was offered to show Wil- may secondary purpose ment have been a why burn withdrew her she consent fabricat- offering testimony. Quoting a district court rape charges “incorporating pur- ed both —as filing, Stephens writes: poses for introduction of the evidence.” {Id. accept [The alleged defendant] will that the 9) (emphasis original). But these comments anger victim’s over his statements argu- cannot overcome waiver of the filing attempted contributed to her charge; by explicitly disclaiming ment and,- it in the same brief however, primary that was not his importantly, by failing timely even more purpose offering testimony. make it before the court. 8.) {Id. original panel opinion The brief also later characterizes the had concluded —which 1010 significance of the contested 1479, ey 967, 71 choice—is

denied, 455 U.S. Stephens’ case. Lonnie to evidence L.Ed.2d conflicting jury in this case heard The by the Indiana Code served The interests that occurred of the events accounts substantial. are obvious—and § 35-37-4-4 testified that house she complainant’s trailer: furthers Rape Statute Shield Indiana The guest an unwelcome Stephens was Lonnie goals. protects It pragmatic and laudable her; Stephens rape testi attempted to who past exposure of their from needless victims engag complainant were he and the fied that conduct; the focus ensures sex, response to ing in but consensual guilt or innocence remains rape trials during intercourse she made he statements history of than the sexual rather the accused encounter, angry, ordered became ended and, by reducing the em complainant; rape allegation fabricated a him to leave and trial, encourages anguish of and barrassment phys prosecution offered The in retaliation. protec report rapes. Without the victims to tending to cor ical testimonial evidence and statutes, by rape victims provided tion Stephens’ complainant’s version. roborate enduring. not worth may trial an ordeal find primarily of his own testi account consisted (1978) (statement Cong.Rec.H. Cf. Stephens’ defense mony. plausibility The Holtzman); cmt. Rep. Fed.R.Evid. part whether the in substantial on turned find trial al (“[M]any [rape victims] something Ste jury persuaded that could be itself_”). degrading as the most complainant could phens said to the have had Moreover, pursue power has the to Indiana respond have enraged her that she would so evidentiary goals through rules —it these to alleged. Central manner he ed prerogative” regu “sovereign state’s each he claims Stephens’ case then are words of evidence in courts. presentation its late jury night, have said that words never McMorris, Indiana’s 643 F.2d at 460. testify that Stephens proposed to heard. legislative is a valid determina shield statute engaged complainant and the were while he heightened deserve victims tion fashion,” “doggy he said her in intercourse unnecessary protection from harassment you Tom Hall like it like this?.... “Don’t life, personal cf. Mich explorations into their (Trial 1278).* you Ste did.” Tr. said Lucas, 1743, 500 U.S. S.Ct. igan v. permitted only was phens instead exceptions to should L.Ed.2d it had some that he said without elaboration Nonetheless, liberally. carved out not be complainant. The thing angered the harass rape victims from to shield desire jury judge required Stephens to convince yield certain cases to another must ment allowing him of his without of the truth present his goal, the accused’s vital plausi its fragments on which to reveal jail, or Sending the innocent defense. bility to counter the He asked turned. process, is not a depriving guilty of due by depiction offered and vivid detailed pay for allows us to price our Constitution whose essential prosecution with version worthy protect legitimate and ambition expunged. had been elements already from additional suf victimized those Stephens’ might testi well disbelieved competent Though evi fering. relevant however, fully; mony if had even he testified may properly be excluded accommo dence story being imagine his believed it is hard interests, legitimate other Chambers date absent this evidence. Mississippi, 410 signifi- majority is dismissive genuine with 35 L.Ed.2d evidence to his de- cance statements must be See exculpatory potential admitted. “very Israel, is but minor 377-378 fense —the exclusion 767 F.2d Sharlow 1002). Stephens, (critical excluded); Stephens (p. on cf. burden” not be harmed according majority, is not Chambers, S.Ct. at give allowed to then, because he “was the exclusion what matters here —and the end (p. facts” version of the poli- of] [] weighed against [the Indiana’s rest must be what * part- complainant switched sexual proof that she had in the offer of There was also statement Drema_and Hall. Tom ners apparently alleging that defendant reminded 1002) expurgated. little That Ste- all the admission offered phens was testimony. allowed to the rest of his Although admitting Stephens’ defense, however, ques- is irrelevant to the unlikely statement is to the transform tion of whether the excluded evidence was in into an inquiry into complainant’s private the important. life, itself At issue is not whether undoubtedly she would suffer some an Stephens present was allowed to guish some de- anguish and em embarrassment — fense, but whether the Sixth Amendment Indiana, barrassment from which in the requires that he present be allowed to encouraging cause of report victims to as specific majori- saults, evidence excluded. Since the has an protecting interest her. ty explore has to exculpatory sig- However, failed the state’s allowing interest in rape evidence, nificance of the excluded it is not victims to of “free embarrassment and surprising that it concludes that the exclusion with reputation [their] unblemished must fall Stephens’ testimony of “disproportion- is not before the of [the to defendant] seek purposes ate to the Rape [of] the Indiana out the process truth in the defending of 1002) (p. Shield Statute” majority has himself- require [T]he State cannot ... —the ] weighed only one of the issues to be bal- [the to bear the full burden of defendant ” anced. vindicating the State’s interests].... Alaska, Davis v. Moreover, I do not allowing believe that 1105, 1112, 39 L.Ed.2d the evidence at issue would undermine the Allowing Stephens’ operation Rape testimony of the Indiana Shield Statute. acknowl- edges may, that protection The statute because consistent with the Sixth of defen- Amendment, rights dants’ operate system, significant exclude a fundamental to our to body times may of other interest likely type impaired. of be evidence Given evidence— significance with which the of legislation the excised drafters ease, were most Indiana’s yield concerned. Prohibited still is interests evi- must suggesting dence fundamental alleged that because of constitutional I, past therefore, victim’s his defense. probably respectful- she conduct ly dissent. consented this time or “asked” to have inter- argument course or other that seeks to ex- CUDAHY, Judge, dissenting. Circuit

plain rape excuse based on the victim’s (The past behavior. Indiana Statute does I. allow introduction of evidence the victim’s past defendant, sexual conduct with Ind. entirely I agree Judge Cummings 35-37-4-4(b)(l).) § Admittedly, Code allow- rape shield necessary laws serve ing Stephens’ testimony would create an ex- purpose; laudable on this score as well as on ception statute, exception but is a addressed, join the other issues he has I Stephens narrow one. That allegedly ut- Judge Cummings’ persuasive dissent. As tered during these comments evening in President signed Carter when he noted question is not alone compel sufficient to legislation creating rape the federal shield admission. The Sixth Amendment does not law, embodied in Federal Rule of Evidence gestae create a broad exception rape res “designed such statutes are to end the shield statutes. Neither does the Sixth public degradation rape and, by victims require Amendment that the statements be humiliation, protecting victims from to en- they admitted because tendency have some reporting rape.” Weekly courage Chambers, aid defense. to. Compilation Presidential Documents 1902 (relevant U.S. at (Oct. 1978). excluded). competent I, however, agree pres- further Rather, Stephens’ statements must be admit- (but important ent circumstances the here ted here they are central to his attenuated) somewhat protected by interests defense. way give Indiana’s shield law must say This is not to purpose that the put the defendant’s on a defense, rape shield problem statute would not be frustrated at The central to which shield requires weighing own behalf the common law his

legislation is addressed interests, recog- important the vic- it is “considered relevant in which courts practice not, chastity pertinent interest here is nize that the state’s tim’s character it, very the act that interest majority consented to would have not she whether or Berger, legislation. rape.” undergirds Vivian charge of all led to the Trial, Rape Tribulation: Maj. Man’s Woman’s at 1003. Courtroom, 77 Colum.L.Rev. Cases in testify on A criminal defendant’s sought larger right to part is a of his his own behalf however, sought prove to offer, to neither in his present call witnesses ad- was intended to character nor victim’s Arkansas, 44, 483 U.S. See Rock v. defense. Rather than question of consent. dress the 2709, 52, 2704, 37 97 L.Ed.2d 107 S.Ct. any matter the truth of attempting prove to (1987). testimony of right to offer the character, Stephens ostensi- about Wilburn’s right to plain “in terms the witnesses is its his to show bly wanted to offer defense, present the right to present a This, course, a is on the listener. effect of the facts as well as the defendant’s version in the law of evidence. common distinction jury may prosecution’s to the so it decide Henry Wigmore generally Evi- 6 John See right a truth This where the lies.... Rev.1976). (Chadbourn Nor § dence 1789 process of due of law.” fundamental element evi- intended as 19, Texas, 14, Washington v. 388 U.S. 87 consent, rather it is evidence of but dence (1967). 1923, 1920, 18 L.Ed.2d 1019 S.Ct. theory to a motive fabricate. enraged that it so Wilburn that what he said present to But the defendant’s charge.1 rape a led her to concoct testimony of witnesses is not boundless. any suggests that there is of this None Rather, majority explains, it as the Stephens’ claim that he is entitled to merit to legitimate interests. required to bow to other grounds that the Indiana relief on the habeas Maj. rape at 1002. It is therefore clear Supreme misapplied state law. The Court constitutional, at least when laws are shield Supreme definitive construc- Indiana Court’s applied prevent a defendant from intro- is, far state’s statute as as tion of the ducing proof of consent —evidence —as concerned, a inter- courts are correct federal history reputation. victim’s sexual or See pretation of state law. See Murdock (7th Duckworth, F.2d 1063 Moore v. 687 (20 Wall.) 590, 22

Memphis, L.Ed. 87 U.S. Lucas, Cir.1982); Michigan v. cf. gets court But whether the state 429 (1991) 145, 1743, 114 L.Ed.2d right wrong, a defendant is the state law procedural requirement a (upholding corpus only if he to a writ of habeas entitled rape against law consti- Michigan’s shield custody “in violation of the Consti- is held in challenge). tutional ... of the United States.” tution or laws one, 2254(a). But, a far more scope § But the balance is delicate U.S.C. majority’s than the somewhat curso- right to on delicate a defendant’s constitutional (Ind.1989). suggestion The district that this N.E.2d 138-39 force to the There is some solely not introduced to show evidence was did take issue with court on habeas review why explain but also to Wil- motive to fabricate description proceedings, the state court's of its Stephens her consent and threw burn withdrew adding Stephens argued that because further fact, Stephens’ counsel also out of the trailer. evidence, allowed to introduce the he was not being upset by suggested that in addition to Ste- argument precluded presenting from his “he was remarks, phens' Wilburn fabricated the regard to how the evidence was landlady charge appease her who was in order to Morris, F.Supp. important.” Stephens v. upset by the Indiana Su- disturbance. But (N.D.Ind.1991). While the record 1141-42 Court, pro- reviewing preme the state court prominent a role the not make clear how does Stephens sought ceeding, introduce found that played would have in Ste- excluded evidence why the reason he was the evidence to show both defense, reject phens' I am inclined neither to the trailer and as a motive thrown out of description Stephens’ defense offered “[According Stephens] she became fabricate. pro- previously to review each of the courts stop angry him and leave. He so she made higher stan- ceeding to a nor hold bring anger crimi- claimed her caused her to State, clarity. Stephens v. dard of nal action him.” Moreover, ry suggest. suggesting treatment our had a motive to striking efforts at this balance should be Arsdall, fabricate. See Delaware v. Van guidance Supreme sensitive to the U.S. 89 L.Ed.2d 674 end, precedent provides. To this cases ad- (1986); Kentucky, Olden v. dressing to cross-examine witnesses S.Ct. 102 L.Ed.2d 513 (per cu- benchmark, provide a useful since the Court riam). recognized rights has that a defendant’s dual analogy between Davis and in- prosecution’s to cross-examine the witnesses stant compelling. Davis, case is As in Ste- bring and to forward his own evidence serve phens sought to prosecution show that similar interests. “Just as an accused has witness had a reason to he. In addressing a prosecution’s confront the wit- challenge constitutional legisla- purpose for the challenging nesses their tion, clearly apropos “Davis is testimony, when he has the prior victim’s own witnesses conduct has establish defense.” some rele- Washington, 1923; 388 U.S. at vance to estabhsh a motive accusa- for false Westen, see also Peter tion.” 23 Wright Charles Alan & Kenneth Confrontation Compulsory Theory Process: A Graham, Jr., W. Federal Practice and Proce- Unified of Cases, Evidence Criminal 91 Harv.L.Rev. (1980) 5387, (em- § dure: Evidence at 568 567 added). phasis compels “Davis the courts to fairly ‘carve a broad exception [for bias im- particular, In in the Court’s decision Davis peachment] generally statutes Alaska, barring 308, v. 415 U.S. 39 ” proof history.’ of sexual (1974), Edward J. Im- is instructive here. The winkelreid, Exculpatory 8-7, § Supreme Evidence there balanced a at criminal (1990) (citation omitted). 199 right defendant’s to cross-examine adverse witnesses in pro state’s interest discovered, As far as I every court tecting anonymity juvenile of offenders. applied that has progeny Davis and its Davis, key was, prosecution witness rape legislation shield has found that such trial, probation by the time of on order of a prevent . laws cannot be invoked to a defen juvenile court sought The defendant dant introducing from prose evidence that a witness, suggesting cross-examine the to the cution witness had a motive to fabricate.2 jury probationary might that his status lead Stamper, See United States v. F.Supp. 766 curry him to prosecutor’s favor with the of (W.D.N.C.1991), 1396 sub nom. without aff'd fice, might thereby be a source of bias. op. Victim, Re One Female Juvenile 959 ultimately by to be affirmed court — (4th Cir.1992) (evidence F.2d 231 that victim Supreme the Alaska Court —refused to allow previously falsely admitted to accusing her According cross-examination. to the trial boyfriend mother’s' of sexual molestation court, the introduction of such evidence was must be admitted where victim claims that by protecting forbidden a state law- the ano her); her father’s friend molested Lewis v. nymity juvenile of offenders. The in state State, (Fla.1991) (evidence 922 So.2d of sisted that deprive this law did not the defen activity victim’s sexual to be admitted where rights, dant of his Sixth citing Amendment victim lied to her mother about her sexual juvenile the state’s in sheltering interest of activity stepfather and accused her from injury fenders embarrassment examination, days gynecological before reputation. Court, however, Supreme mother, by scheduled her struck the balance It determine otherwise. held that active); daughter sexually using the defendant’s interest this evi State whether DeLawder, suggest Md.App. dence—to v. the witness had 344 A.2d 446 (1975) (evidence outweighed sexually motive to state’s interest victim was ac he— protecting reputation. allegedly witness’s Since tive must be admitted where victim Davis, consistently the Court has reaffirmed accused defendant of out of fear of telling defendant’s to introduce pregnant); her mother that she course, majority, question by 2. The avoids this constitutional evidence that at- simply overlooking particularized credibility prosecution Davis and the tacks the witnesses. prosti- that the victim was a Jalo, al to show Or.App. 557 P.2d 1359 State tute, activity had (evidence theory that such (1976) sexual conduct to on the of victim’s Ac- ten-year-old something victim en to do with her motive to lie. admitted where court, victim, defendant’s 13 who was cording conduct with gaged in sexual defendant, son, allegedly accused defen year-old naked in a car with the found told attempted rape after defendant falsely dant “motivated to accuse have been parents). her that he would tell victim rape by to avoid fur- a desire defendant Cf. Cir.1993), (7th Acevedo, 996 F.2d 145 one, Sandoval prosecution.” Id. For such ther — denied, U.S. -, rt. “broadly applied, sex work- approach denies ce (declining to 126 L.Ed.2d violence complain who dare to ers any finding its error light of decide—in Mary presumption of innocence.” Joe Confrontation was harmless —whether Legal Mani- Frug, A Postmodern Feminist impeach victim’s defendant to Clause entitles (An Draft), 105 Harv. Unfinished festo history); about her sexual own statements (1992). Moreover, uncriti- L.Rev. (9th Alaska, 957 F.2d Wood v. every claim acceptance of a defendant’s cal Davis, Cir.1992), quoting history to a that the victim’s sexual relates (while a consti a defendant has expand a defendant’s motive to he would right to cross-examine witnesses tutional present a defense —and the same jurors from which the facts show “ purposes behind token undermine the draw inferences relat appropriately ‘could legislation beyond the bounds —far ” witness,’ reliability the fact ing contemplated Supreme Court’s deci- “posed victim the nude that here the Davis, Arsdall, A sions in Van or Olden. performances does not pornographic in acted right to intro- defendant has a constitutional any way indicate that she is a dishonest in history evidence of the victim’s sexual duce case”). in or had a motive to lie this person plausi- only where the court finds it at least say a has is not to defendant history way But this in that this could some relate ble right trot out a witness’ a constitutional to to a motive to fabricate. history claims that this whenever he sexual To do otherwise runs the risk that history gives rise to a motive fabricate. exception for evidence of motive to narrow right under Davis should The constitutional rape the entire shield law. fabricate swallow protecting in outweigh the state’s interest result, course, if a court This would be the of proffered rape where the evi victims that the fact that a victim were to conclude dence, true, plausibly provide the if sexually made her less active somehow rape a with a reason to contrive witness worthy in of belief. Insofar as the courts appear charge. courts to have lost Some Chew, Winfield, Joyce move in this di- example, in sight fact. For Chew v. of this rection, they broadly. But read Davis too Texas, pet. (Tex.App.1991), 804 S.W.2d in drawing bright a line between those cases 3, 1991), discretionary (July rev. ref'd plausibly suggests that which the defendant Davis, that under the defen court concluded history the victim’s sexual does eases intro had a Amendment dant Sixth give a motive to where it does not rise to that the victim suffered from duce evidence end, easy In the it is fabricate is no task. nymphomania, illness of and therefore judge simply requires a matter that a trial initially lack of a motive to lie about her “had prudent judgment. exercise hide her sexual affliction from the consent to Applying principle to the case at bar this public.” also v. Common See Winfield question. presents a difficult On the one wealth, 301 S.E.2d 225 Va. hand, suggest that a woman who is shown (evidence money victim had extorted sexually active would become so to have been had sexual rela

from those with whom she charge angry a rape that she would invent “relevant and tions somehow found be But fabricate”). than a bit old-fashioned. be more probative of a motive to Similar other, pervasiveness it is the former on the ly, Joyce, 382 Mass. Commonwealth ultimately (1981), view that led the court con this traditionalist 415 N.E.2d forty-eight legislatures to Congress state that the defendant had constitution- cluded legislation, However, protecting rape (as enact shield many appellate judges well as having victims from judges endure trials which trial reviewing state convictions in cases) they are cross-examined about entire that, their habeas apparently believe where past. paradoxically It is legally be- “there is no evidentiary sufficient ba- ing activity confronted with one’s sexual sis for a jury” acquit reasonable the defen- —or with its aspects dant, least more lurid point there is no ordering a new —is thought Instead, to be the source of extreme embar- trial. they essentially enter sum- pres- rassment that mary judgment has prosecution, for the declaring Thus, ultimately ent this evidence. I any con- constitutional error to be harmless. See 56(a)(1). clude that claim—that he told what Fed.R.Civ.P. enraged

Wilburn so it her that led her to only problem procedure him rape accuse some evidence of a —is patently that it is unconstitutional. crim- All such, motive to fabricate. As the Constitu- inal defendants —even guilty the most requires tion permitted that he be to intro- them —have a- constitutional to have a Thus, duce this evidence at trial. unlike the jury, appellate not an judge, find guilty them overwhelming majority applications beyond a reasonable doubt. While I do not applications pose no laws— proposition believe this ever to have been in serious constitutional difficulty—Indiana’s doubt, Supreme Court, serious speaking deprive shield law here served to Ste- through Scalia, Justice made the matter phens constitutional abundantly clear last Term. The harmless defense. question error asks: [N]ot

II. effect what the constitutional error might generally expected upon to have majority, having found no constitution- jury, a reasonable but rather what effect it violation, al had no occasion to address the upon guilty had verdict the ease at possible question of harmless Be- error. looks, hand. Harmless-error review we cause I find that constitutional said, on “jury basis which the violated, rights were I next examine whether actually inquiry, rested its verdict.” The may this violation be treated as a harmless words, whether, in other is not in a trial error. error, that guilty occurred without the a While the district court found no constitu- surely rendered, verdict would have been error, tional it had no hesitation in conclud- guilty but actually whether the verdict ren- that, error, ing had there been it would have in surely dered trial was unattributa- According been harmless. to the district so, ble to the error. That must be court, Stephens’ version of the is “in- hypothesize guilty a verdict that conceivable” because fifteen minutes in never fact rendered —no matter how elapsed between the time arrived inescapable findings support that at Wilburn’s house and the time he arrived at might verdict jury- be—would violate the house, following the Straits’ the incident. guarantee. trial Thus, jury “the would have been hard — Louisiana, U.S. -, - - Sullivan pressed to believe this courtship whirlwind -, 2078, 2081-82, 113 124 S.Ct. L.Ed.2d place took in a matter of fifteen minutes.” (1993) (citations omitted) 182 in (emphasis Morris, Stephens v. 756 F.Supp. original). Because the court was “persuaded that no jury prof- reasonable would have found the principle helps explain This the distinction fered would have a doubt as raised drew, that the Arizona v. Fulmi petitioner’s guilt,” to the him of his depriving nante, 279, 1246, 499 111 U.S. S.Ct. 113 constitutional to offer that (1991), errors”, “trial between was a harmless error. Id. may harmless, which be as treated approach This is a common may harmless “structural errors” which not. While analysis. error Where an error may is harm- most constitutional errors as treated less, necessary remedy harmless, is a new trial. rights there are some that “are so 1016 1431, 89 L.Ed.2d infraction can U.S. S.Ct. that their a

basic to fair (1986), a Chap- that a denial of defendant’s harmless error.” treated as never be (which is adverse witnesses California, cross-examine man v. 824, 827-28, closely analogous Where 17 L.Ed.2d evidence) may that it would be harmless. But the trial be treated as the error so infects error did analysis are instructive impossible to determine the mechanics of verdict, Arsdall, harmless error addressed not affect the In the Court here. Van infeasible, per a rule of se analysis involving argument is that all errors Ogletree, J. applies. require per See Charles reversal exclusion of evidence erroneous Jr., Fulminante: The Harm impossible Arizona v. it is se reversal. “Because Error to Coerced Applying Harmless wrongfully excluded evidence know how Confes- (1991) (“a sions, Harv.L.Rev. jury, argument have affected the for which we can seems to be one trial error runs, is mandated.” Id. at reversal whether it has for sure sometimes know at 1437. S.Ct. outcome, inaccuracy in a trial and a caused rejected this contention. While The Court be one for which seems to structural error Clause errors are amenable Confrontation certainty”). any know with we can never analysis, inquiry the “correct harmless-error involve the errors Most constitutional whether, damaging po- assuming that the is ought evidence that wrongful admission of fully cross-examination were tential “trial er All such errors are be excluded. realized, reviewing might court nonetheless rors,” analysis unpro is and harmless error beyond say was harmless the error therefore blematic. The Fulminante Court doubt.” Id. at reasonable “reviewing the erroneous concluded that added). (emphasis confession, involuntary admission of an court, appellate as it does with the admission read, that, requires Fairly Van Arsdall improperly admitted evi of other forms of deprives a trial court a defendant of where dence, simply reviews the remainder of the right to attack the credibili- his constitutional the defendant determine witness, ty prosecution reviewing court of a the admission of the confession was whether analysis engaging in harmless error must Ful beyond harmless a reasonable doubt.” fully defendant would have assume minante, at 1265.3 effect, credibility. impeached the witness’ errors,” “trial which be treated Unlike reviewing that the court should assume harmless, require per errors” “structural devastating impeachment would been so perhaps arguable It that the se reversal. error, effect, admitting with a defendant’s error here —interference in prosecution witness the of the right present to evidence —is a structural engage The court should then first instance. example, Supreme not- error. For the analysis, in harmless error the conventional Clark, 570, 578, 478 106 ed Rose v. U.S. setting the that was “errone- aside evidence (1986) (em- 3101, 3106, 460 S.Ct. 92 L.Ed.2d admitted,” deciding ously and the effect added), analysis phasis that harmless error If court is this error had on the verdict. the defendant, trial, “presupposes a the which rely on the convinced that the verdict did not counsel, may present evi- represented witness, prosecution the er- of the argument impartial dence and before may and the ror be treated as harmless judge jury.” Sandoval, F.2d conviction affirmed. 996 Cf. case, ability im- (limiting defendant’s to as the at 149-50 But this overstate the Arsdall, peach rendered harmless victim’s statements Court held in Delaware v. Van Abrahamson, determining jury’s ver feet or influence 3. The Court's decision in Brecht 1710, - U.S. -, 1718, at -, 113 S.Ct. 123 L.Ed.2d 353 -U.S. 113 S.Ct. at dict." Id. (1993), 750, the use of the "harmless be States, abolished quoting U.S. Kotteakos v. United yond on habeas a reasonable doubt” standard (1946). 776, 90 L.Ed. 1557 Instead, review. the Court found that on collat review, only affects the standard of But Brecht treat an error as harm eral review a court is to analysis. of the not the mechanics injurious ef- less unless it "had substantial and jury 806, judge’s instructing ifornia, 15, 2525, disre- U.S. 819 n. statement). gard (1975)), 2533 n. 45 L.Ed.2d 562 as well as the Sixth Amendment guarantee that “[i]n all case, Stephens sought In this to introduce prosecutions, criminal enjoy accused shall testimony suggesting that Wilburn was fabri- ;.. right compulsory to have process in cating rape charge. Depriving Stephens obtaining witnesses in his favor.” testify opportunity his to this effect was error. This error was harm- constitutional opinions clear, As the other make the issue say if less the court can that Wilburn’s application is whether rape the Indiana testimony did not have a “substantial and shield statute barred from exercis injurious determining effect or influence in ing his testify. constitutional The jury’s verdict.” Because Wilburn was opinions other question deal with as an witness, key prosecution obviously we nothing proposition. all or I am opin make such an cannot assertion. ion respect that in order both the criminal Stephens'was Because denied his constitu- defendant’s present constitutional his behalf, tional on his own defense and the preventing State’s interest in because we cannot conclude error the disclosure of history, victim’s sexual harmless, court’s district denial of a middle road is the pursue. we must course corpus relief habeas should be reversed. Peters, 941 Cunningham See F.2d trial, Stephens is entitled to a new one in (7th Cir.1991) (“[t]his presents case a conflict permitted story which he is to tell his between rights of criminal defendants jury. implausible If the as the under the sixth and fourteenth amendments believes, Stephens again district court will be their own defense and in short order. But convicted because Ste- ‘sovereign prerogative’ state’s regulate phens’ constitutionally first trial was defi- courts”) presentation of evidence in its cient, respectfully I dissent. Chrans, (quoting Johnson v. 844 F.2d (7th Cir.), denied, cert. COFFEY, Judge, dissenting. Circuit (1988)), S.Ct. 102 L.Ed.2d 71 cert. de —nied, worthy purpose -, Rape the Indiana Statute, 35-37-4-4, §§ Shield as I majority Ind.Code dismisses it, protect rape understand is to victims from appeal the defendant’s to the doctrine of res having history paraded their sexual gestae, allowing front gestae excep a res and to keep of' the focus of tion to shield legislation “would effec particular question. tively statutes,” trials on the crime in gut rape majority appeal upon This habeas calls court to and because “no court has ever held weigh justice the scales of gestae concept any strike a bal that res is a constitu ance between significance.” the criminal defendant’s Four tional I Id. believe process Amendment give teenth due with we must day the defendant his in court the State of in protecting thoroughly analyze Indiana’s interest his defense before rape victims from during dismissing argument. embarrassment tri Although the term unquestioned obsolete, al. It is gestae may criminal defen res principle right testify has a dant to on his or vitality. her own inherent term the maintains its — Dunnigan, behalf. United States v. merely asking U.S. The defendant in this action is -, -, 1111, 1117, 122 113 S.Ct. L.Ed.2d granted opportunity this court that he be the (1993); Arkansas, present Rock v. to his version of the incident his 2704, 2709, 97 L.Ed.2d 37 own words within the limitations of the stat (1987). right This is from the derived Due ute and the Constitution. to Essential his Process Clause very of the Fourteenth Amend version of the event is the statement he ment, Rock, contemporaneous 483 U.S. at 107 S.Ct. at 2708 with act of made the said (“[t]he right testify that, him, to on one’s own according behalf sexual intercourse to a criminal rights ... is of the prompted instantly one the victim to terminate process ‘are essential to due in' alleged relationship. law a fair the A consensual mere ”) (that adversary process’ (quoting paraphrase proffered testimony Faretta v. Cal- of his constitutional to accommodates the defendant’s “something” “[tell that caused her he said conveying the in the face of far and neither flies stop”) falls short him] to language repulsive very rape actual of the impact true of the intent nor contravenes ges- Regardless of res allegedly uttered. of the he statute which bars evidence shield tae, opportunity his denying Stephens I understand past victim’s sexual conduct. process. offend due day in court would portion of his of this small that admission 2708; Rock, 107 S.Ct. at 483 U.S. very argued to cre- testimony could well be 284, 302, Mississippi, 410 U.S. Chambers v. rape statute. exception ate an to the shield it, exception, comparable to for the So Moreover, majority’s disagree ob I evidence, exceptions under rules of allowing exception narrow servation that and Fourteenth mandated the Sixth for the defendant to statute shield protect create and Amendments which vital to testimony central and present Furthermore, testify. right to constitutional legisla rape shield defense would undermine might protection, trial court to insure this In nothing of the sort. tion. It would do limiting jury direct- give a instruction to the deed, fairness mandates fundamental only as ing that the be considered present evidence be entitled defendant Stephens’ question of whether state- to the inextricably to the defense and that is central triggered her ment to the victim alleged criminal behav intertwined with abrupt change and not for assess- attitudinal testimony falls short of ior. Id. Since the credibility prior her ing her based on past sexual conduct recounting the victim’s testimony, of the conduct. After admission I doubt that it even reputation, have some upon weigh jury would then be called very rape shield intent of the contravenes credibility question and de- Thus, legislation while statute. in fact he even uttered the termine whether constitutional, Michigan adjudged has been eyes in the statement whether Lucas, regarded by victim to trier of fact it was instance, (1991), in a minor L.Ed.2d degrading that it motivated her to be so exception protect the State’s interests abruptly change attitude toward Ste- her must be made to accommo ing victims fact, phens. It is the finder of with all the right to date the defendant’s constitutional it, ‘oppor- evidence before who “has the best present the heart of his defense. Such tunity and nonverbal to observe verbal exception comparable would be to the narrow focusing the witnesses on the behavior of admitting inadmissible exceptions otherwise subjects’ responses the in- reactions and Evi under the Federal Rules of terrogatories, expressions, facial atti- their dence. tudes, voice, contact, eye posture and tone of ” in- testimony the seeks to defendant movements,’ body appellate not an discrediting go troduce does not toward nothing which has before it but the cold court victim, rather, goes heart of his it transcript. pages of the court United States (according Stephens) and the defense (7th Cir.1993) Tolson, (quot- —he F.2d 1494 engaged in complainant were consensual sex Waters, ing Churchill v. 977 F.2d triggered her degrading until his comments (7th Cir.1992)). change abrupt or motivational attitudinal remaining present a statements alleged causing her not to terminate the and were compelling less constitutional claim prompted consensual sexual encounter but trial court because properly excluded Thus, allege rape. I subsequently her to “the relevant hold that the defendant’s constitutional ‘may, is not without limitation. The testify entitled him to relate to the eases, appropriate to accommodate bow engaged in consen- allegedly that while criminal legitimate interests in the manner, other animal-type sual in an he stated sex process.’ Mississippi, trial [Chambers complainant something to the effect to the 1038, 1046, 284, 295, 93 S.Ct. “doggie it U.S. thought that he she liked to do (1973).] But restrictions of a testimony, with- L.Ed.2d 297 fashion.” Admission of this testify may partners, right to not be mentioning prior victim’s defendant’s out arbitrary disproportionate pur- to the paraphrase defendant to a effectively bland they poses designed ap- are to serve. In undermines his right constitutional testify. to rules, evidentiary plying its a must instance, State In this the Constitution mandates a by evaluate whether the interests served a exception minor shield statute to justify imposed the limitation rule on the allow day the defendant to have his in court right testify.” defendant’s constitutional present very key words to his defense. Rock, Rock, 55-56, 483 U.S. at 107 S.Ct. at U.S. S.Ct. at 2711 2708. (footnote omitted). Exclusion proof testimony harmless, of his offer of was not thus, also included the statement that “Tim a Hall remand for a necessary. new is you way]” said it I respectfully [liked this and the state

ment that the swapped partners. victim had Dissent. fly directly Since these statements in the face they shield statute in that are RIPPLE, Judge, dissenting. Circuit explicit reputation references to the victim’s conduct, prior Today’s the State’s interest decision will no doubt be hailed as excluding greater the evidence very is “contemporary” However, a one. potential embarrassment to the victim is ruling by correctness of a Judges of the , greater. Although exclusion of the testimo Third Article is not by measured whether it ny impinge will somewhat on the defendant’s “contemporary” protects but whether it right testify, right “the relevant the basic undergird constitutional values that id., testimony limitation,” is not without political our legal order. When viewed instance, in this the exclusion of the testimo from perspective, the court’s decision ny “arbitrary” is neither “disproportion nor represents a departure radical from the stan- purposes ate to the [the exclusion de is] Supreme dards established Court of signed to Accordingly, serve.” Id. the testi protection United States for the of the mony naming prior partners partner give accused to evidence in his or swapping properly deemed inadmissible. her own injus- defense. It also condones an question remains whether exclusion of tice possibility that raises the distinct that an “doggie fashion” comment was person harmless innocent has been convicted of a most appellate judges error. speculate For heinous crime. I shall discuss each of these jury what a would have done it had heard briefly. considerations quick certain stepping is like into — Louisiana, sand. See Sullivan v. U.S. -, — - -, 2078, 2081-82, 113 S.Ct. Supreme As the Court has reminded us on (“[T]o (1993) hypothesize occasions, many the basic function of the guilty verdict that was never fact ren find, criminal trial is to even in the most dered —no inescapable matter how the find complex situations, and delicate of human ing support might that verdict be—would THE stage develop- TRUTH. At this in the jury-trial guarantee.... violate the ment of our constitutional law of criminal requires appel Sixth Amendment more than procedure, question there can be ho that a speculation hypothetical jury’s late about a action.;..”). person accused of criminal offense has the us, jury the case before fundamental to tell his or her was not allowed to hear the statement Arkansas, the trier of fact. See Rock v. allegedly rape, caused the victim to claim 2704, 2707, rather the L.Ed.2d permitted defendant was (1987) (stating that “it tell the cannot be doubted “something” that he said angered that a defendant in a the victim. criminal case has the Such watered down story certainly testify to take the version of his im witness stand and to lacked the defense”); pact gutter-type Ferguson his or her own might words that 570, 573-82, conceivably Georgia, triggered al victim’s 758-63, leged explosive change. (detailing attitudinal In a case 5 L.Ed.2d 783 where the of the two evolution of the individuals one’s own behalf). diametrically opposed, Indeed, was so limiting Supreme Court of the of a consistent mistrust long recognized that this have demonstrated has States United required that pro- They have among those “essential to due restrictions. right such adversary process.” impor- fair an law in a that there is cess of the state demonstrate 15, 806, n. California, 422 U.S. by Faretta v. such an exclu- tant interest to be served 2525, 15, 45 L.Ed.2d 562 2533 n. 95 S.Ct. evi- more critical the excluded sion. The Oliver, 257, (1975); 333 U.S. accused, see also re more of the the dence to the defense 273, 499, 507, 92 L.Ed. 682 68 S.Ct. inter- important must be the asserted state “person’s right to ... an (stating that a Mississippi, 410 U.S. est. See Chambers v. heard in his defense —a opportunity to be 284, 293-303, 1038, 1044-49, 35 93 S.Ct. in our day in basic right [is] to his (1973). court — L.Ed.2d 297 In similar fash- system jurisprudence”). of affirma- Supreme Court’s clear Given the ion, of the Compulsory Process Clause the to tell right in of the of the accused tion Rock Amendment, applicable the made Sixth fact, it is to the trier of his or her Amendment, in- by states the Fourteenth the cases of the perhaps no accident that the right the of the defendant to take cludes relies Supreme upon which the State Court Rock, 483 stand in his or her own behalf. testimony the with the have dealt not Indeed, 52, at 2709. the S.Ct. Here, the we deal not with defendant. that is no Supreme “[t]here Court has said testimony of the defendant but the justification an accused for a rule denies respect actual to the of the defendant testimony.” opportunity to offer his own the act of which he stands accused. The criminal right specifically includes “an ac- Id. This right not "withthe of the accused right present his own version of cases deal cused’s Finally, underly- present an account of the person the events in his own words.” Id. right lips accused to tell his or her own own but with ing the event from his or her in the story in his or her own words is rooted right to cross-examine of the accused right context, Fifth Amendment to decide whether in that latter how- witnesses. Even testify. Supreme has not to As the Court ever, recognize Supreme Court’s cases it, guarantee right includes the put prop- in importance guarantee of this the accused to remain silent unless he or she adversary process. The working of the er speak “in the unfettered exercise chooses weigh requires that state court Court Malloy Hogan, own will.” 378 U.S. of his necessity against the preclusion of a sanction 8, 1489, 1493, S.Ct. protected the Sixth Amendment.2 values Important inquiry has been to the Court’s centrality proffered testimony. of the sure, right present evidence To be Attempts “prototypical form of bias to show is not on one’s own behalf absolute witness,” part on the of the Delaware v. Van protect important be limited order to Arsdall, 673, 680, 475 U.S. countervailing governmental For interest. (1986), always 89 L.Ed.2d 674 Lucas, instance, Michigan 500 U.S. important especially been considered (1991), 114 L.Ed.2d 205 S.Ct. instance, right. preservation of that For determined that a state could enforce Alaska, Davis v. requirement that a defen- procedural a state bears, (1974), a case that 39 L.Ed.2d 347 provide the defendant dant notice notes, striking similarity to Judge Cudahy prior planned to introduce evidence own, Supreme that the our Court held proffered preclusion conduct testi- Nevertheless, right to cross-examine a defendant had the mony.1 although prosecution by showing that witness for the person an accused time, absolute, witness, probation at the the cases on or her own defense is fashion, testify lecting Supreme that hold that the Court has held cases 1. In similar perjury). to commit does not include enhancing the defendant's sentence perjurious testimony impermissible is not an preclusion important in one's own behalf. bar on the is also to note that It Dunigan, - U.S. -, -, at the the case before us was not aimed United States v. order in (1993) (col- himself. of the defendant 122 L.Ed.2d 445 justify biased because of his desire to further denying avoid opportuni- defendant the Although ty trouble with authorities. state law complainant’s demonstrate that the in- protected anonymity juvenile offend- in protecting terest relationship the current ers, the Court held that the need to demon- had in resulted her bias. Id. 488 possible outweighed any pri- strate such bias S.Ct. 483.

vacy needs of underlining the witness. bias, importance showing such 2. part previous relied in holding on its in Jury service in this case must have been v. McElroy, Greene which stated: very difficult task. The record reveals that principles relatively

Certain jurors remained were sharply asked to resolve jurisprudence. immutable in our One of contested versions of what in occurred governmental these is that where complainant’s night action trailer on the of March seriously injures individual, and the rea sonableness of depends the action on fact complainant The was able fully to relate findings, the prove evidence used to her account. asleep She was on the Government’s ease must be disclosed to couch when the defendant arrived. Her sis- the individual so that opportuni he has an ter and asleep brother-in-law were in the ty to show that it is untrue. While this is guest room off the kitchen. Her son and her important documentary in the case of evi nephew asleep were in a bedroom off the dence, important it is even more where the hallway which also was located near the consists indi complainant awoke, bathroom. When the memory might viduals faulty whose be or standing the defendant was in the front door

who, fact, might in perjurers persons be inside the trailer. He sat down beside her malice, vindictiveness, by motivated into suggestions made sexual attempted lerance, prejudice, jealousy. We have to kiss her. him She told of the presence of req protections formalized these in the others the trailer and called out for her of confrontation and cross-ex uirements sister. He ceased his advances for the mo- amination. ment, began holding but then her and at- 474, 496, 360 U.S. tempted again once to kiss her. She called added). (emphasis L.Ed.2d 1377 again out once for her sister who still did not respond. go The defendant said he would Supreme cases Court have also but first needed to úse the bathroom. He that, crystal made assessing clear im walked down the hall and then returned to portance testimony, it is of utmost complainant angrily told her that she importance to be sensitive to the realities of presence had lied about the of others in the human life and the actions and reactions of trailer. He then threw her down on the instance, people. real For in Olden v. Ken couch, pressed his hand across her mouth to tucky, suppress scream she was about to utter. (1988), Supreme Court sum pressed body hers, He undid her marily reversed an exclusion the courts of bra, and tore a button from her shirt. As he Kentucky of complainant evidence that the trousers, reached to undo his the victim a sexual misconduct trial living with the flipped him off her and ran into the bedroom prosecution’s key corroborative witness at off shouting the kitchen while for her sister the time of trial. The Court noted that the and brother-in-law. defendant’s desire to demonstrate that complainant had a motive to lie order to The defendant’s version of the facts is protect her relationship quite current was an at different. Some of it was heard “ tempt him, to demonstrate a ‘prototypical jury; According form some was not. he ” (quot of bias.’ Id. at 109 S.Ct. at 483 arrived at the defendant’s trailer around Arsdall, ing 680, 106 Van p.m. pursuant 475 U.S. at standing 10:00 to a invitation 1436). possibility that, jury might that the to visit sometime. He testified when he prejudiced by arrived, and, the victim’s complainant interracial rela was awake af- not, tionship Court, conversation, held the sufficient to ter brief invited him into the p.m. At 11:10 at about her. He left that, at the com- testified He further trailer. hus- 12:30, former complainant’s the about carried her child suggestion, he plainant’s trailer and defendant’s arrived the band complain- rejoined the ánd then her bedroom to have attempting the defendant accused moments of a few After the couch. ant on lady.” The old with “Ms sexual intercourse divorce, the pending her talk about small charge. defendant the The demed defendant if he could complainant the asked defendant girlfriend told his that he had admitted also Mssing her he fondled a Mss. give her While and ex- the versions of event different four Because her bra. unhooked and her breast that, had ground on the his untruths plained lie down could not comfort- complainant the sexual inter- had had that he she known they couch, suggested that lie she ably on the might have she complainant, with the course they moved Together, floor. on the down It is also the children. him and left taken against a chair placed it coffee table the the Stone, who drove the friend that clear began to defendant couch. The opposite the house, irntial- complainant’s the defendant the then assisted clothes and his remove behest. ly at the defendant’s lied of hers. in the removal complainant balance, post-incident activities If, the on defendant, like point, the Up to this story his do not enhance the defendant his to tell had been allowed complainant, weight (although it is estimate difficult now, jury. at the crucial But story to the matters), some, al- jury might give such intercourse was the sexual of whether point all, activities post-incident of the though not consensual, prohibited the defendant certainly present matters complainant of the jury of what telling the his version from suscep- of the incident make her version that jury to tell the had wanted transpired. He waMng interpretation. After to adverse tible complainant en- that, and the were while he brother-in-law, complain- sister and her intercourse, he in consensual sexual gaging brother-in- visibly upset. Her appeared ant him couple had that another told to her said running man in a red shirt he saw a law said part- in a sexual they been involved that had complain- southeasterly direction. The in a had arrangement in which she switching ner happened and had told her what ant sister engage liked to she participated that also her face. on her if there were marks asked The “doggy fashion.” in sexual intercourse entire face marks on the The sister observed this remark that wished defendant over her placed a hand as if someone had she complainant that angered the his so complainant p.m., the At about 11:30 mouth. leave. As he stop and told him to him made husband, estranged her a call from received sister. The left, call for her he her heard night have visited supposed to who was however, the defen- never heard what jury, The say be late. that he would and called elicited he said that such dant claims the defen- husband that complainant told her complaining wit- from the strong reaction husband, rape her. The had tried to dant Instead, him the trial court restricted ness. residence, came Stephen’s stopping at after “something” that saying he had said a.m. The 1:00 or 1:30 trailer at to the about angry. made her state; noise agitated inwas an husband situations, case in these is often the and brother- complainant’s As sister awoke than sources physical from other altercation some of the evidence and a verbal in-law complaining complain- supports the participants two men. The between the ensued supports po- de- police. some When witness’ version sister called ant’s call, com- responded The defendant arrived to the neither fendant’s version. lice p.m. He the offi- anyone 10:15 else informed plainant home of friends around nor Indeed, attempted rape. alleged com- been to the he had did reveal cers attempted rape to home, had report that he but told them no made plainant’s until, following eve- by his on McHughes’ Pic a Pac the authorities been left at by her was confronted complainant he them ning, told He testified friend Stone. noise in complained landlady who he not want them .about because did this between during the altercation complainant’s the trailer had know that he been and brother-in-law. complainant’s husband intercourse engaged in sexual trailer and had landlady complainant that told the she was the rawness of allegedly what he said problems given that would would tolerate no the trailer substance to his testi- mony. Only park. complainant landlady being apprised told after of that ascertaining statement and police that the had been called whether such an utterance, made, made when it was intruder had been in her trailer and “that’s produce the reaction it particular did fight what the was over.” Tr. 573. did She complainant could the have determined attempted rape. not mention an The landla- and, whether the statement was made if dy suggested complainant go that the to the made, produced alleged whether it reac- police restraining and seek a order. The tion. complainant, company in the of her brother- in-law, police then went to the station and many It is attorneys doubtful that reported the incident with the defendant the experienced matters, in criminal whether as night attempted rape. before as an prosecutors counsel, or as defense will be majority able to opinion read the and main- Olden, required jury As these facts any tain reasonable intellectual comfort level judgment to make a careful aon delicate that THE was indeed ascertained. TRUTH perspectives, human situation in which the The quite reason for apparent. this unease is motivations, and emotions of the various ac- The defendant was present- forbidden from were, case, they tors as often are in such a ing jury evidence that was central to complex Ascertaining and subtle. THE description defense —a of the event in degree certainty to a TRUTH that would question. If description had been ac- justify imposition liability of criminal cepted by jury, he would have been free twenty year a sentence was an awesome of all responsibility. criminal Judge As responsibility. out, Cummings points majority carefully matter, practical As if the defendant was assessing just steers clear of central how respect to be exonerated with to this accusa- testimony was to the defendant’s defense. tion, jury he had to convince the that his majority also adequately fails to deal was, complainant encounter with the from reality with the proffered testimony that the finish, start to consensual. He therefore had truth, would not have been admitted for its jury to ask the to make a crucial assessment simply but to show that there was a serious credibility opposed of his as to that of the reason for the victim to enraged have been complainant. required This task the mem- and to have reacted as the defendant submits jury personality bers of the to assess his as Indeed, that she simply did react. to tell a well as hers and to assess the cultural envi- jury angered by that the victim became ronment which the two lived and interact- defendant, undisclosed statement of the while might ed with others. What have seemed forbidding opportunity the defendant an very implausible story if told others from triggered disclose the statement that such a a different cultural environment circumstances, violent reaction under the very plausible when told been the defen- only prevent the defendant from tell- complainant dant. Whether the consented encounter, ing his side of the but to him cast have sexual intercourse with the defendant damning as evasive —a characterization un- alleged- and whether the statement presented der the circumstances here. The ly made to her would have caused her to only deprived trial court’s decision not withdraw that consent and become so infuri- ability give, defendant of the from his own ated as to recharacterize encounter when mouth, event, his own version of the but the upon it suited her is an convenience issue portrayed also bland substitution him to the which the cold record reveals little. Ascer- jury juror, as someone less than frank. A taining required THE TRUTH a careful as- realizing importance of the demeanor, personalities, case, sessment certainly expect the defendant’s temperament of the two individuals. To limit quite specific that he “I bit more than testifying the defendant something he said angry.” said to make her “something” angered deprive her is to trial court not denied him the jury testimony. jury story, of the essence of his It tell the his own it also rewrote the him portrayed fashion that

script in a unworthy of belief because

someone reply.

vagueness of his jurisdiction habeas our

Few cases within guilt or inno- as to

raise serious issues Here, however, we

cence of the defendant. nicety criminal with a technical

do not deal with the real-

procedure. are confronted We might have been hid-

ity that THE TRUTH us jury. This case thus leaves from the

den that, haunting had the fear both sides of

been allowed to hear of both witnesses

and evaluate the demeanor they happened, the result told what responsibility different. The

well have been other shoulders.3 this result must rest on

for judgment of the district

I would reverse permit the defendant The state must

court. deprives before it tell his side of the years of his life.

him of 20 BUSHENDORF, L.

Harold

Plaintiff-Appellee, CORPORATION,

FREIGHTLINER

Defendant-Appellant.

No. 93-2237. Appeals,

United States Court

Seventh Circuit.

Argued Nov. 1993.

Decided Dec. 1993. Suggestion Rehearing

Rehearing and 3, 1994.

En Banc Denied Feb. issue, Indeed, a federal majority a conclusion on that makes it clear that it to reach is, however, story. appeal. It disbelieves the defendant's court on habeas proceeding prerogative in the state

Case Details

Case Name: Lonnie K. Stephens v. Charles B. Miller, Warden, and Attorney General of the State of Indiana

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 6, 1994

Citation: 13 F.3d 998

Docket Number: 91-1690

Court Abbreviation: 7th Cir.