People v. Dawsey

1977]

PEOPLE v DAWSEY Opinion of Right 1. of Constitutional Law — Confrontation —Cross-Exami- Rape—Prior Experience nation — Sexual —Statute. Legislative judicial attempts prevent meaningful cross-ex- constitutionally a amination criminal defendant are unac- ceptable; however, obedience, a trial court’s in a criminal case, sexual conduct to a statute which limits a defendant’s ability complaining prior to cross-examine a witness about her experience significant impairment did not result in a of (US the defendant’s of Const, VI, 750.520j; 28.788[10]). Am MCLA MSA Impeachment—Un- 2. Evidence —Modern Codes of Evidence — chaste Conduct. place among Modern codes evidence allocate no the methods of impeachment conduct; for cross-examination about unchaste insight rarely help into sexual mores a witness is a to a jury determining disposed if the witness is towards untruth- fulness. Complaining 3. Evidence —Criminal Witness— Sexual Conduct — Consent. indicating complaining Evidence in a witness defendant’s charges person trial on of criminal sexual conduct promiscuity may prove indiscriminate tend her consent to particular occasion, however, sex such evidence of a complainant’s willingness engage part- in sex with certain likely ners does not make more that she consented in the charged. incident for which the defendant stands [2, [6] [7, ^[5] [1, ^[15] [3, 11, 4] 9, 10, 13, 14, 16 Am Jur 65 Am Jur 65 Am Jur Am29 Am 12] Jur Witnesses 507. 65 Am Jur Jur 16] 2d, Rape 2d, 2d, References 2d, Rape 2d, 65 Am Jur Constitutional Evidence §§ §§ 2d, §§ 1-14. Rape 2d, Rape 82-85. § Points 249, 251-257, §Law 574. §§ § 85. 120. in Headnotes 267. Rape Law —Criminal Sexual Conduct —Cross- —Constitutional 4. History Complainant —Statutes. Examination —Sexual holding a statute basis for unconstitutional which There is no charge ability trial on a of a defendant on limits the present complaining conduct to evidence of a criminal sexual only prior activity where the defendant com- witness’s complainant’s veracity inability plains attack the of his history about her sexual and the defendant attempt produce testify at trial to witnesses to about did not (MCLA complainant’s reputation chastity 750.5.20j; MSA 28.788[10]).

Partial Dissent Standing—Criminal 5. Sexual Conduct— Law — Constitutional Force —Statutes. may Standing required before a constitutional attack be raised statute; charged against a with and a convicted of degree does not conduct in the first have criminal sexual challenge unconstitutionally vague portion standing as allegedly conduct statute which omits of the criminal sexual of force or lack of force where the issue of the essential element fact, placed judge’s and the trial before the trier force judge’s required view that the statute decision reflected finding threat of force to sustain the conviction. of force or the Right Law —Fundamental —Cross-Examina- 6. Constitutional tion. right of a defendant to cross-examine a witness has The criminal right. been held to be a fundamental Relevancy Legal Relevancy. Relevancy—Logical 7. Evidence — — relevancy Evidential has been deñned as that evidence which is issue; helpful throwing light upon any point in material in however, piece logically fact that a relevant evidence point necessarily to a material in issue does not mean it is legally to that issue. relevant Relevancy—Constitutional Rights. 8. Evidence — statutory legally A declaration that certain evidence can never be scrutiny right relevant close where a constitutional demands involved. Relevancy—Discretion—Criminal Sexual 9. Evidence — Conduct —Complaining Sexual Witness —Prior Conduct —Credibil- ity. general rule that trial courts decide the issues of The the.

relevancy proffered the exercise their discre- applied regarding tion be to the admission should of evidence complaining prior being witness’s sexual conduct which is bearing complainant’s credibility as on the offered in a case involving charges conduct, subject of criminal sexual to reason- provisions effectuating encouraging able state’s interest rape victims to come forward. 10. Evidence —Cross-Examination—Restrictions on Cross-Exami- Complaining nation — Witness —Constitutional Law —State Interest.

Constitutionally placed valid restrictions can be on a defendant’s complaining of a of cross-examination witness at a defend- charge ant’s trial on a of criminal sexual conduct order to protect legitimate interest; however, a state’s the statute should narrowly provisions drawn so that its do exceed that protect necessary which is the state’s interest. Rape 11. —Evidence—Consent—Prior Sexual Conduct —Probative op Court. Evidence —Discretion present criminal sexual conduct statute is unconstitutional potentially because forbids admission evidence rele- consent; restricting vant to the issue of statute the admission evidence be of such must not so indexible that even evidence exceedingly probative which is and to a critical defendant’s case be the cannot admitted at discretion of the trial court. 12. Constitutional Law —Due Process —Criminal Law —Probative Appeal Evidence —Exclusion of Evidence — and Error. defense, present taking The of an accused to a to in addition behalf, in his stand own is a fundamental element of due law; process process a due violation would occur where there imaginable are even situations where evidence of sexual behav- persons arguably probative ior third even of consent and that evidence is from excluded statute. Activity 13. Evidence —Criminal Sexual Conduct —Prior Sexual —Complaining Witness —Cross-Examination. A defendant who was convicted of criminal conduct sexual in the degree opportunity first denied who was to offer evi- prior activity complaining dence of sexual witness through opportunity this cross-examination should be afforded hearing to remand the trial court where an in camera may held at be which the defendant offer the cross- time ask, sought upon hearing proffered examination he admissibility light the trial rule evidence court would on its precedent subject; cases on the if set forth of the standards should conviction be is ruled the evidence inadmissible> admissible, be ordered. a new trial should and if ruled affirmed -Admissibility—Bur- Rape Conduct — Sexual —-Evidence—Prior 14. den of Proof. activity by complaining speciñc acts of sexual Evidence general parties rule in a with other is inadmissible as witness upon prosecution; it is incumbent criminal sexual conduct proffered up strongly evidence tie could particular case before facts such admitted. Harassment—Duty—Courts.

15. Witnesses — questions protect duty has a witnesses from trial court A proper go beyond which the bounds harass, merely annoy humiliate. Sexual Conduct —Cross-Exami- Law —-Criminal 16. Constitutional nation —Confrontation—Statutes. prohibits provision of the criminal sexual conduct code which cross-examining complaining re- from witness a defendant prior garding because conduct is unconstitutional her rights and confron- a defendant’s of cross-examination violates provisions tation; of the statute are not affected the other evidentiary provision can be from the rest severed because (MCLA seq.; seq.). et 750.520a et MSA 28.788[1] of the statute Detroit, from Court of Robert Appeal Recorder’s 16, 1976, Colombo, at J. J. December Submitted 27675.) (Docket Decided 1977. July Detroit. No. first-degree H. Dawsey William was convicted of Af- appeals. criminal sexual conduct. Defendant firmed. A. Robert General,

Frank Kelley, Attorney Cahalan, L. General, Derengoski, Solicitor William Wilson, Re- Edward R. Prosecuting Attorney, Solak, L. search, Training & Andrea and Appeals, Prosecuting Attorney, people. Assistant for the Stone, George appeal. for defendant Opinion of the Court J., Maher, R. M. P. J. Before: and V. Brennan Kaufman, JJ. Maher, R. P. Judge opinion M. Kaufman’s all adequately deals with but one of the issues appeal raises in from his his conviction conduct, first-degree sexual for criminal MCLA 28.788(2)(l)(e). 750.520b(l)(e); MSA Judge Unlike I cannot conclude that the court below committed reversible error when it limited cross- complainant examination under MCLA 28.788(10). 750.520j; MSA trial, At defendant’s his counsel was able to elicit that from an act sexual something was not intercourse new to her. An objection from the prosecutor, sustained by the court, questioning. terminated that line of The court, although expressing serious doubts about eliminates "any statute the trier of the * * * credibility fact of the parties involved”, ruled the correctly questioning of the complainant prior about her activity persons with other prohibited than defendant was under MCLA 28.788(10). MSA 750.520j; Defense counsel regis- tered objection prohibition against his to the in- into the quiry complainant’s prior sexual activity. challenged statutory provision reads: "(1) specific Evidence of instances of victim’s conduct, opinion sexual conduct, evidence of the victim’s sexual evidence of the victim’s sexual reputation conduct shall 520g under admitted sections 520b to and only judge unless extent finds following proposed evidence is material to a fact at issue in the case and that its inflammatory prejudicial outweigh nature does not probative its value:

(a) past Evidence the victim’s sexual conduct the actor. 76 Opinion of (b) specific activity of sexual instances Evidence of semen, pregnancy, or origin or of

showing the source disease. (2) proposes offer evidence de- the defendant If (l)(a) (b), within subsection or the defendant

scribed in arraignment shall days after the on the information proof. may of The court motion and offer file written hearing to determine whether order an camera (1). admissible under subsection If proposed evidence is during of the course is discovered new information may the evidence described in subsec- that make (b) (l)(a) admissible, may judge order an in or tion proposed hearing whether to determine camera (1).” subsection is admissible under evidence attempt did not offer defense counsel Since reputation opinion of the com- or evidence either only plainant’s conduct, on sexual restriction specific complainant’s of instances of evidence appeal. conduct is at issue this Defend- sexual statutory restriction on that ant contends activity denied right Quot- constitutional confrontation. him his ing "[djisallowing brief, de- his stroyed of defendant’s most effective means one veracity”. attacking her against prohibition legislative

A evidence of a pre- worthy purpose class, for the certain even suffering venting from embarrassment witnesses may stand, not limit the Sixth Amendment right guaranteed all defendants. to confrontation Alaska, 94 Ct 39 L Ed 415 US S Davis v key prosecution Davis, witness 2d 347 In pressure have been under fabricate be- juvenile probationary status, but an cause of his prevented defense Alaska statute cross-examina- Supreme Court held tion about status. following statutory on cross- this restriction Opinion of the Court produced an error examination of constitutional magnitude.

"In setting we conclude of confron- paramount tation is to the protecting State’s policy juvenile Whatever temporary offender. embarrassment might family result Green his by disclosure of his juvenile prosecution record —if the using insisted on him right outweighed by petitioner’s to make its case—is probe into possible the influence of in bias testimony of crucial identification witness.” US 415 at 319. strong Similarly language in v Chambers 284, 410 93 Mississippi, 295; 1038; US S L Ct 35 Ed (1973): 297, 2d 309

"The of cross-examination is more than a desir- procedure. able rule of trial is implicit It in the consti- confrontation, right of helps tutional and assure the 'accuracy the truth-determining process.’ Dutton v Evans, 74, 210; 400 US 89 S L Ct 27 Ed 2d [91 213] (1970); States, 123, Bruton v United 391 US 135-137 [88 (1968). 1620; is, indeed, S Ct 20 L Ed 2d It 'an essential requirement and fundamental for the kind of fair trial country’s which is this goal’. constitutional Texas, Pointer v 380 US 405 L S Ct 13 Ed [85 (1965).” 2d 923]

Davis clear; legislative Chambers are judicial attempts prevent meaningful cross-ex- amination are constitutionally unacceptable. can- I see, however, not how the trial court’s obedience to impaired statute significant in any defend- way ant’s cross-examination complainant. De- fendant’s inability explore past, order "attack her was veracity”, inconsequential.

An early Michigan case, reviewing a conviction statutory for rape, upheld the exclusion of cross- App 741 76 748 Mich op Opinion can- chastity. chastity "Lack of examination about credibility of a female impeach used to be Mills, 630, 637-638; 54 v People 94 Mich witness.” (1893). People Connelly, v also, See NW (1909). afterwards, long NW 80 Not Mich it was however, Supreme Court held that to allow a defend- of the trial court the discretion about cross-examined ant in murder Cutler, 6; 163 People 197 Mich NW her chastity. Mills, supra, criticized as People v decisions, many Michigan being inconsistent with civil, ques- that authorized both criminal chastity. about her tioning of a female witness upholding the restriction decisions, Recent about her rape of a left to the trial the discretion chastity, emphasize Whitfield, App 585; 228 People v 58 Mich court. Sturgis, App NW2d 475 Weems, (1971), People v 380; 192 NW2d 618 (1969). These cases 553; 172 NW2d 865 the view that skepticism a proper indicate with moral charac- equated can be activity sexual reliability. with testimonial ter and thus Whalen, 672; People v 390 Mich 213 NW2d In (1973), Supreme 116 Court had little tolerance for defendant’s prosecutor who cross-examined relationship: about their alibi witnesses lesbian put no more than "It did cross-examination] [the he, prosecutor, jury front of the fact personally disreputable to be of felt these witnesses at 686. unworthy of belief.” 390 Mich character and showing a inability impeach a witness posi- minority time chastity lack of was at one a one. Anno: Cross-examina- tion, strong a although affecting morality purpose for tion as sexual witness, 65 credibility 410. Modern codes ALR People v Opinion op the Court place among of evidence allocate no the methods impeachment for cross-examination about un- Evidence, chaste conduct. Model Code of 106; rule Evidence, Uniform Rules of Federal 608; rule Evidence, Rules of Proposed Michigan 608; rule Evidence, Rules of rule 608.

Insight into the sexual a mores of witness rarely help a jury if determining disposed witness is towards untruthfulness.1 There is no reason to consider an unchaste witness as mendacious. Dean Ladd observed: "History contains many highly names of re- persons spected telling whose honor in the truth would questioned be yet not and whose sex life hardly would generations. the model future The frank novels biographies present and day disclose habits of living, not conformity legal commendable or in with standards, representative ethical and yet not people whose word under regarded oath would be as Ladd, Trends, Credibility bad.” Tests —Current 89 U Pa L Rev People Bouchee, opinion, In v very recent 233; (1977), Mich Supreme NW2d 626 prejudicial found error in cross-examination of defendant and his wife about the legitimacy of 1People Bastian, 457; (1951), People v 330 Mich 47 NW2d 692 v Smallwood, (1943), Cowles, 10 NW2d 303 ability 224 NW 387 all involved a defendant’s rape complainant’s testimony by showing discredit a to be her person only imagined episode obsessed with sex who a sexual charge statutory rape, defendnat. In all three cases the where testimony erroneously consent was at issue. The excluded was testimony experts offered to buttress admitted from medical that "the girl warped by contemplation mind of the was so sexual and desires accept imagined as to lead her to as real or to fabricate a claimed experience”. People Cowles, 246 Mich at 431. abnormality accepted impeachment. Proof of mental is an means Wigmore (Chadbourn Rev), 934a; Comment, 3A on Evidence 59 Yale § impeachment showing LJ 1324 chastity. isIt different from a lack of 76 Opinion the of appar- the agree "We cannot their children. court, express and the assumption of ent legiti- Appeals, of the Court of holding children related the Bouchees’ four of macy of the defendant or untruthfulness truthfulness 253. Mich at as his wife witnesses.” complaint when the trial no Defendant had statute, a line of court, stopped following produced no answers would have questioning that for character truth- complainant’s to the relevant fulness. inconsist- appears consensual intercourse

Since first-degree criminal charge ent with conduct, briefly to consider appropriate it statute, court, following the whether the trial from substantiat- limited defendant impermissibly complain- his encounter with ing version of his ant. complainant’s character for rape attack on a

An her sex life about veracity by cross-examination support are misused in answers that may produce under scrutiny the sexual conduct claim that helpful to distin- It is therefore was consensual. to demon- evidence that is offered guish between disposition towards un- complainant’s strate the im- offered to show truthfulness and evidence that defend- story probability Neal, In Harris v engage ant forced her to sex. a civil action 116 NW victim, court against brought rapist by his question under this careful distinction. The made action, whether, was a civil review reputation chastity plaintiff’s bad " probability bearing upon 'material as plaintiff’s testimony’ ”. for us proper we think

"In the interest clearness People 751 v Opinion of the Court distinguish question to by raised defendant’s con- tention questions from certain other which often arise. question The is different from the one which arises upon when a witness female cross-examination for the purpose affecting of her credibility questions is asked imputing chastity. lack of While the law in such cases settled, thoroughly is not may this much safely stated, tht authority the trial court has to exclude such (Knickerbocker testimony Worthing, 138 Mich 224 (1904)]) NW 540 and that the answers [101 question witness are be is The conclusive. before us is also to confined to Mich 145 NW 862 sought reputation. distinguished (1893)]. [1873];People Abbott, reputation impair In such a case from the The the credibility of a principles question veracity. governing the admissi- proof 97 Mich which arises when it Leonard witness reputation ^[484] v Pope, by proof [56 27 bility mentioned us, testimony in the two classes of cases above application question have no to the before had, they they if would not sustain defendant’s by contention. The rule invoked defendant’s counsel is a different rule. He applied invokes the rule by this court v Ryno, 148 Mich 137 (1907)]. NW 740 [111 That was a respondent criminal case wherein was rape. convicted There we reputation held: 'The bad a prosecuting age witness above the of consent for chastity prior to charged’ the date of the offense tending prove admissible as that the may intercourse consent, have been had ment because this rule judg- we reversed the

was violated the trial court.” 153 Mich 58. at indicates,

As Harris recognized cases have that not all dealing a complainant’s with sexual history is equally valuable when consent becomes an issue at trial. While evidence indicat- ing that the complainant person is a of "indiscri- minate promiscuity”, Comment, 43 U Chi L Rev (1976), prove tend to her consent particular occasion, sex on a will- ingness engage partners in sex certain with App 76 Mich Opinion of the Court likely that she consented make it more does charged. stands incident for which why unspecified number of reasons "There are an relations may consent prosecutrix totality of the refuse defendant. person third but so that significantly dissimilar becomes circumstances unrelia becomes of consensual behavior continuance 679, 690; Mitchell, People v ble.” J.) Bronson, lv (dissenting opinion of NW2d 876 granted, 395 Mich 752 case, State, 35 Fla Rice v an Florida early In of a defendant convicted 17 So 286 refusal alleged error in the trial court’s rape be cross-examined permit Su- The Florida acts of intercourse. prior about answered: preme Court may guilty been that a woman have "The fact slight and uncer- man is too with one

illicit intercourse the conclusion that she to warrant tain an indication any man who guilty with other probably be would sought of her. If she was a woman such favors chasitity, guilty had been reputation for or general bad case would of lewdness with of acts first instance the evidence would different. In the be bear directly whether such a upon question as to any likely the advances of would be to resist woman man; and, second, whether, having yielded in the as defendant, she would of the once to sexual embraces likely again person.” 35 Fla yield be to the same not at 238-239. Citing a case Michigan approach is similar. Rice, wrote supra, Supreme relied on in 309, 312; McLean, 38 NW People (1888): prosti- prosecutrix common

"Evidence Opinion op the Court tute, bad, or that chastity her character for is admis- sible, particular unchastity acts of or sexual inter- may shown; course with the defendant be but evidence person of such acts with a third is not admissible. State, McDermott v 13 Ohio St 332 [1862].” While jurisdictions some do permit a defendant to delve indiscriminately into a sex life, they are the minority. Anno: Admissibility in cases rape previous of evidence of unchastity, reputation for unchastity, prosecutrix, 140 ALR 364. prosecutrix

"In country, while may ques- be tioned as to acts of intercourse with the accused in disprove allegation case, order to rape force in a questions there doubt as to whether as to her inter- proper. cases, course with other men are In numerous that, chastity is held prosecutrix while is in issue and general attacked evidence of her chastity, bad character it cannot be assailed specific of unchastity per- acts with other (6 sons than ed), the accused.” 4 Jones Evidence §25:16, pp 154-155. proposed See also FRE MRE 404.

Defendant did not attempt produce witnesses to testify about reputation for so, chastity. denied, Had he done and been a question serious about the statute’s constitutional- ity would have to be faced. See Commonwealth — Manning, —; Mass 328 NE2d 496 But here, where complains defendant only of his ina- bility to attack the complainant’s veracity with about her history, there is no basis holding for the statute unconstitutional.

Affirmed.

V. J. Brennan, J., concurred. [July- 76 Kaufman, J. J. by Partial Dissent N. part, (dissenting in concur- J. N. part). ring a was convicted after Defendant Recorder’s Court Detroit bench first in the sexual conduct of criminal offense degree, 28.788(2)(l)(e). 750.520b(l)(e); MSA MCLA subsequently to a term of from sentenced He was prison appeals years as of and now 4 to 15 right. court below with case confronted the

This problem rape typical ain one-on-one confrontation believe, trier of fact whom does the case: complainant the defendant? complaining to the trial, witness testified At following a.m., 1975, June at about facts: On girlfriend’s walking house home from her she was During journey, man, Detroit. in southwest identified up defendant, walked from as the her might with her. She if he walk and asked behind for refused, to walk with her he continued but approximately 10 minutes. more they walked testified that as

She further up put her believed be a knife what she man throat recounted, Then, she to scream. and told her the street man forced her across park She to take off her clothes. and told her complied her belief that out of fear because of armed with knife. The defendant was engage him. in intercourse with then forced her to grabbed Immediately thereafter, the defendant complainant by he was the wrist and told her they taking as She stated that her to his house. heading passed they a man toward his house were identified "my as brother John”. the defendant testimony by disclosed Further the defendant that she was able they convince go testified to her house instead. She should solely concern out of this offer was made Partial Dissent safety "psyche her and to out” the defendant get away they walked, order from him. As complainant again, but, did not see knife felt one on the side of her neck. complainant they testified further that as girlfriend home, her

reached she called out her girlfriend’s stepfather police her to call the raped. just because she had been As a result of escaped action, she from the defendant. complainant later, A short time called the police. giving police report, After she was Hospital taken Detroit General for an examina- examining opinion tion. The doctor was of the recently she had sexual intercourse. He found no bleeding trauma, scratches, evidence of or abrasion part any body, on emotionally upset. of her but stated she was prosecution rested, After the the defendant re- sponded the stand accusa- years tions. He testified that he was old and had never been agreed convicted a criminal offense. He night question, up

that on the he walked walking to the as he home from up They a friend’s conversation, house. struck he said, and she asked if he wanted to smoke some marijuana. Thereupon, they park went to the couple "joints”, street, across the smoked a kissed a little bit and sexual intercourse ensued. having He denied a knife.

Afterwards, defendant stated that he invited her during trip to his house and saw his brother coming down the street. He he claimed that did girl not introduce the to his brother because he was unaware of her name. way, testified,

While on the com- plainant they invited him to her house. As walked pulled house, toward her a late model Thunderbird 76 J. Dissent Partial Kaufman, with a talked purportedly complainant up. Thereupon, minutes. about two in the car for man stated, complainant told the defend- defendant better see him later because had ant that she might it boyfriend knew her and the car "dude” in Accordingly, he rough on both of them. a little get left. evidence, the trial of the listening to all

After and made the follow- guilty found defendant judge ing findings of facts: to rule. There is no proceed now Court will "The penetration was commit- an of sexual question that act meaning of the statute that with the connection ted in explanation of the defendant recently enacted. The as to the issue voluntari- therewith and in connection guarded one. at best ness is lady at this young meet this that he would "The fact voluntarily night, would take him that she hour of the in the pleasures with him park allow him sexual and go to her home for going to then that he was

[sic] knowing even her pleasures without ever additional name, totally unbelievable. The Court finds I it find 520(b) Section penetration under the act of sexual the defendant accom- E in that was under subsection person complainant upon act plished this using weapon or article úsed or fashioned an while a manner weapon complainant it to be a to lead the believe her will in thereupon that he overcame Court does find him therewith and the connection criminal sexual conduct guilty of the offense of degree.” first propounds three claims appeal,

On defendant First, portion of the it contended that error. which de- sexual conduct statute under criminal vague. charged unconstitutionally fendnat was so, argues, because the essential This is from of force or lack of force absent element Second, posi- language. is defendant’s statutory Partial Dissent N. J. . 28.788(10), 750.520j; tion MCLA MSA which all prior excludes evidence of be- activity tween parties rape and third cases, is unconstitutional in that it impermissibly curtails the defendant’s to cross-examine complaining witness. Finally, defendant submits prosecutor present failed to sufficient guilty evidence to find defendant beyond a reason- able doubt. response argument,

In to defendant’s first as a rule, general Michigan requires standing before a constitutional attack be raised against stat- See, e.g., State ex rel Prosecut- ute. Wayne County Bernstein, ing Attorney App case, NW2d In this the fact critical that the issue of force was the placed before trier fact, and judge’s of the trial decision reflected his the required view that statute finding of force or the threat of to force sustain the conviction. Ac- cordingly, position defendant in to com- plain that purported vagueness problem of in the statute. however,

Defendant’s argument, next cannot be easily so disposed of. statutory provision question reads: "(1) specific Evidence of of instances the victim’s conduct, opinion sexual evidence the victim’s sexual

conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only the that judge extent the finds the following proposed evidence is material fact at issue in the case and its inflammatory or prejudicial outweigh nature does not probative its value:

(a) Evidence of past the victim’s sexual conduct with the actor.

(b) Evidence specific activity instances of sexual 76 J. N. Partial Dissent semen, origin pregnancy, or showing source or disease. "(2) proposes to evidence de- offer If the (a) (1) (b), defendant within or subsection scribed arraignment on the information shall days after the proof. The court and offer of file order an motion a written hearing determine whether camera (1). If under subsection

proposed evidence is admissible during the course new information discovered in subsec- the evidence described may make (b) admissible, (a) (1) judge may order an in tion proposed hearing to whether determine camera (1).” subsection MCLA is admissible under 28.788(10). 750.520j; MSA appears issue, to consideration of

Prior question prop- necessary if this was to determine appeal. erly preserved counsel asked Defense trial, act "[i]s an at something you?” After she new intercourse negative, prosecutor objected replied in the previously question based on counsel’s defense cited statute. over, objection was More- This sustained. expressed judge view that his his the trial had no this statute and he were tied hands allowing questioning of this sort. discretion in following objection Thereafter, tendered: Well, for the "MR. CROCKETT: [Defense counsel]: record, exception ruling prohibit- I to Court’s take previous ing inquiring complaining witness’ my into the suggest I activity, any, if that that statute sexual that that, I particular regard is All of unconstitutional. respectfully.” do larger obligation placed on shoul-

No can be ap- preserve for. the issue ders of peal. Turning, then, to the substance defendant’s initially majority contention, to limit the seeks by Partial Dissent into the inquiry constitutionality provision in question by relying appellate counsel’s some- inartful language what ques- forbidden tioning designed to test the "veracity” of the complainant. opinion The majority holds that specific statute’s restriction on evidence of in- stances of the sexual conduct does not violate defendant’s rights constitutional and confrontation to veracity, as extension, credibility. according Even weight due the presumption of constitutionality statutes, attached I cannot subscribe theory and, of the majority I accordingly, dissent from that conclusion.

Undoubtedly, question serious constitutional under the Sixth Amendment is raised provision. above, As noted the majority seeks to only focus on cross-examination as to veracity. However, cross-examination as to truth and verac- ity specialized, is so 2 Wharton’s Criminal Evi- dence, ed, 472, 13th utilized, and so rarely it § can be assumed that using counsel was the term "veracity” interchangeably "credibility”; thus, I will focus just on the statute’s effect on impeachment as to veracity impeachment but also as vein, to credibility. In the same Supreme Court in Giles v Maryland, 386 US S Ct L Ed 2d that, concluded in a one-on- rape case, one the issue of wholly consent turned Thus, on credibility. far from the nar- majority’s approach, row this case confronts this Court with obligation to consider certain other constitu- tional ramifications of the criminal sexual conduct code evidentiary provision as relates to confron- tation and cross-examination.

It should emphasized at the outset of our inquiry of cross-examination has 741 76 760 J. N.J. Kaufman, Partial Dissent In Cham- right. be a "fundamental” been held to 284, 295; 1038; 93 Mississippi, 410 US S Ct bers v Blackmun, (1973), Mr. Justice 35 L Ed 2d 297 Court, wrote: Supreme speaking for right is more than desir- "The of cross-examination procedure. implicit the consti- trial It in able rule of confrontation, helps assure the right of and tutional truth-determining process.’ Dutton v 'accuracy 74, 210; L Evans, 27 Ed 2d 400 US 89 S Ct [91 213] 123, States, 391 135-137 (1970); v US Bruton United [88 (1968). is, indeed, It 'an 1620; 20 L Ed 2d S Ct 476] requirement the kind of fundamental essential and goal.’ country’s constitutional is this fair trial which 1065; Texas, 400, 13 405 S Ct L Ed v 380 US Pointer [85 (1965). course, and to Of to confront 2d 923] may, appropriate absolute and is not cross-examine cases, legitimate interests in to accommodate other bow Stubbs, E.g., 408 process. Mancusi the criminal 2308; 33 L Ed 2d But its 204 S Ct US 293] [92 question the diminution calls into significant denial ultimate quires fact-finding process’ and re- 'integrity closely examined. competing interest be 540; California, S L Ct Berger v 393 US [89 (1969).” 2dEd 508] type, the state recognize that in cases I encouraging "legitimate has a interest” from prosecution by protecting witnesses rapists stand. on the witness harassment humiliation ensuring Legislature validly concerned with complainants unnecessarily subjected, are not complainants they know will experi- to the traumatic unnecessarily subjected, before having private paraded lives ence their how to room. The question them the court v Mis- Chambers interests, competing balance the sissippi, supra. Alaska, S

In Davis v 415 US 94 Ct conducted Supreme L 2d Ed Partial Dissent balancing process such and held that the state’s interest policy protecting in of a confidentiality juvenile offender’s record had to yield when faced with so right vital a constitutional as the effective of an adverse witness for bias. Supreme concluded, The through Court Mr. Chief Burger, Justice that the state’s desire that juvenile fulfill duty his to testify free from embar- rassment and with reputation his unblemished must right fall before the of the defendant to seek out the truth process in the defending of himself.

The determination make, that this Court must in much the same manner as did the United State Davis, Supreme in Court involves two separate but goals related of cross-examination: impeachment credibility and the substantive establishment the defense in the case. I will discuss credibility first.

The majority opinion solely focuses veracity, on a subset of the larger category credibility. The majority contends that "[i]nsight into the sexual mores of a witness is rarely a a help jury in determining if the witness disposed is towards Thus, untruthfulness”. according to the majority, the statute’s on absolute bar such evidence should survive constitutional challenge. agree I cannot with that conclusion. Relevancy in Michigan has been defined as

" 'helpful in throwing light upon any material point issue’ People (Emphasis original.) in the Rimson, v 63 1, 4; Mich App (1975), 233 NW2d 867 Becker, People citing 300 Mich 2 NW2d (1942). course, 503 Of piece fact that a evidence is logically point relevant to material issue does not necessarily mean is rele- legally issue, vant to that Co, Jarecki v Ford Motor App 78; Mich 237 NW2d 191 But where a Mich J. N. Dissent Partial involved, statutory decla constitutional can never legally that certain evidence ration As credibil scrutiny.1 demands close relevant issue, I submit complainant ity always specific instances when evidence there are conduct does bear Bastian, 457, 460; credibility. In held Supreme 47 NW2d 692 as sexual habits of specific to the prosecu to show admissible that one sexual-psychopath, a condition trix was rendered her credi physician in the case testified ruled that bility court had "very poor”. to "certain not cross-examine as the defense could show, tending as it alleged part conduct on her claimed, sexual-psychopathic she was a perversion”, 330 person indulged in acts Supreme concluded: at 462. The Mich rulings of "It of the defendant that the is the claim erroneous, they were were and that the trial court rights. Emphasis placed on fact prejudicial to is the his largely the against that case rested on the credibility prosecutrix, her was testimony of the that questioned, purposes impeachment and that for de- though proofs, of a fendant was entitled to offer even nature, prosecutrix revolting tending to that show nymphomaniac. appreciate a While we the reluctance permit testimony of character judge of the trial to question jury, placed in to we are con- be before strained to question of the in hold in case character testimony competent.”

such 330 Mich at 462. 1 distinguishes The fact that a constitutional involved upholding legislative case cases in nonconstitu- from determination cases, that, reasons, policy

tional legally can never be for certain evidence good example prohibition against relevant. A references 500.3030; personal negligence injury in to insurance MSA cases. MCLA Steffen, 24.13030, 155; 48 v 132 Benmark 374 Mich NW2d People 763 Partial Dissent Cowles, See, also, People v 429, Mich Smallwood, (1929), People v NW 387 (1943).2 54-55; 10 NW2d While admitted that a it is certain amount of prejudice toward the each of the above would engendered cases have been by the (and occur, admission of did excluded evidence retried), if the cases were nonetheless both trial appellate courts able were to make determi nation based on the facts the case before it. Bastían, Cowles, and Smallwood demonstrate applying a blanket difficulty rule this issue. Despite the need for sensitivity involved in this issue, general rule relevancy should be here, applied courts decide the issues of relevancy in exercise of their discretion.3 But with that accordance need sensitivity, alter natives be developed greatest should allow the support measure of rape prosecutions. victims opinion again majority sub-categorize credibility The seeks distinguish majority opinion, of the force cases cited above. See fn However, plain appears language 1. of the assailed statutory impeachment by proof provision, abnormality— of mental proof where such is made with evidence of the victim’s sexual activi- prohibited. ties—would nevertheless Bouchee, opinion majority also cites Supreme 253 NW2d 626 where the Court found: "We cannot agree apparent court, assumption with the of the trial and the express holding Appeals, legitimacy of the Court of that the Bouchee’s four children related to the truthfulness or untruthfulness quarrel of the defendant his wife as witnesses.” I have no with that holding, way My but its citation no eliminates the issue. concern objective, over encourage- the statute is not its in a broad sense rape prosecutions, ment of in agree but its absoluteness. So while I can any single proposed prejudicial instance the more evidence is probative, courts, than guidelines proper I remain convinced that appropriate procedures, and under should be able to make case-by-case that determination on a basis. I that in cannot believe all prejudicial probative, cases the evidence would be more than assumption majority makes to avoid the issue. constitutional Co, supra, Jarecki v Ford Motor at 83: relevancy proffered "The evidence is within the sound discretion court, appeal of the trial and that discretion will not be disturbed unless a clear abuse has been shown.” 76 J. Partial Dissent N. specific summary, possible since it

In complainant’s sexual conduct to of the instances admissible) (thus legally to the issue of relevant necessary inquire credibility, whether there to it is protect could which are alternate methods legitimate with less curtailment interest state’s rights. More Sixth Amendment the defendant’s specifically, question the statute is whether narrowly exceed that it does not drawn so necessary protect the state’s interest.4 which must answer this

question negative. in the jurisdictions include enacted in other Statutes stringent Michigan.5 than in alternatives They, less response public too, enacted were protect complainants who take the demands provisions However, of these are while all stand. generally provide they same, that an in hearing held to determine the must be camera admissibility proposed evidence, at which weigh probative judge will value time the trial against prejudice it of the offered provides produce. This alternative mecha would protect unjustified witnesses from nism which can harassment on assured of thereby Lastly, proffer Moreover, victims are stand. protection judicial system, before the complaints. encouraging bring them to opportunity the defendant it allows if its evidence which be admitted probative clearly outweighs prejudicial value its effect.

Even were these alternatives devised some ineluctably put aside, sister states I would be present statutory drawn the conclusion Wade, See, 705; e.g., Ct 35 Ed Roe 410 US 93 S L 2d 5See, 21.02; 782.4; e.g., Fla Texas Penal Code Iowa Code Ann § § 794.022(2); Stat Stat Cal Evid Code 782 and Colo Rev § §§ Ann 1973, 18-3-407; Nevada Rev Stat 48.069 and 50.090. § People 765 v Kaufman, Dissent N. J. J. Partial fall, provision must because the statute potentially forbids the admission of evidence relevant to the issue of consent. majority opinion

The only briefly” "considers] relationship of the statute to the issue of consent concludes: indicating "While evidence that the is a Comment,

person promiscuity’, of 'indiscriminate 43 U 613, (1976), Chi L Rev 624 to may prove tend her occasion, particular to on a consent willingness sex engage partners in sex with certain does likely not make incident for which more in she consented charged.” defendant stands The majority’s appears conclusion irreconcilable People Oliphant, v with 250 NW2d (1976), Supreme wherein the Court held that pattern evidence is relevant to the issue of consent Oliphant, supra, 490, or nonconsent. As in at established, nonconsent, fact to be is cru "[t]he Furthermore, Oliphant, supra, cial”. as at consent, the key issue of there directly "[o]n Court, contradictory Supreme testimony”. af ter noting that the trial court had undertaken probative balance value evidence against its potential effect, prejudicial allowed evi dence previous of the defendant’s sexual encoun ters. It is difficult why conceive reason defendant’s sexual history should be treated differ ently than Indeed, that of complainant’s. Justice dissenting, voiced concern over that very Levin, point, Therefore, Mich at 514-515. I cannot accept the majority’s conclusion.6

Trial given courts must be discretion make a 6My point any way disagree- reluctance on this does indicate majority’s reputation ment treatment of evidence as admissi- to, People ble show that have intercourse been consented Ryno, 148 Mich 111 NW 740 cases cited therein. Partial Dissent to the decision made akin

determination presently Oliphant, supra. But the statute as designed of- The fact is inflexible. probative exceedingly to a and critical fered is it from the defense cannot remove defendant’s prohibitions discretion whatsoever statute’s —no being placed A in the trial court. clear illustration by provision engendered this the difficulties findings judge’s facts in judge in the trial this found previously, the trial found As noted case. young lady would meet this "[t]he that fact that he night, that she voluntar- at this hour ily would park him in and allow him sexual take going pleasures [sic] and that he was him go pleasures to her home for additional with- then knowing totally name, her I find it ever even out Surely, if defendant had been able unbelievable”. particular that course con- to demonstrate engaged commonly by the com- duct had been plainant, had the finder of fact would have of the case under a different examine light; yet, facts statute, of the the defendant

because opportunity judge even ask lacked to allow along him to these lines. offer evidence approach, flexibility lack of in this with its opportunity even denial of an to a defendant evidence, such not cured the limited offer (2). exceptions in subsection A state’s contained protecting putting jail interest criminals abridging witnesses affords no warrant so rights always fundamental of a defendant. It must may remembered it be an defend- be innocent precluded attempting to offer ant who is from even may be he has to what the most critical evidence exonerate himself. Supreme

Indeed, the States Court has United present of an accused held Partial Dissent N. J. defense, stand, beyond taking "is a fundamen- of law”. Washington v process tal element of due Texas, 14, 19; 1920; 87 S US Ct 18 L Ed 2d Texas, (1967). Pointer v also, See US L 85 S Ct 1065 13 Ed 2d opinion The majority neglects impact Michigan confrontation cases on the statute under Texas, of Washington v reading review. A fair supra, suggests it constitutionally impossible to absolutely prohibit necessary cross- specific examination about acts to establish a de- fense. Opponents viewpoint of this will doubtlessly argue that even if it is admitted that possible for a factual situation to exist wherein the victim’s persons sexual behavior with third is probative of consent, prejudice engendered by the admis- sion of the evidence would outweigh probative its argument, though, neglects value. That the consti- process aspect tutional due inherent in this issue. I must reiterate my concern about how best to legitimate effectuate the state’s interest in this "imaginable” area. But if there are even situations where evidence of sexual per- behavior with third consent, sons is only arguably probative then, of exclusion, because of the statutory in those cases a process due violation would occur. In those situa- tions, small, which admittedly a may be criminal defendant, presumed innocent, deprived will be of the opportunity present to potentially exonerating evidence without any recourse to proba- show its tive value. procedure Such a right would mock the to a fair trial denigrate right the to cross- However, examination. right the to cross-examina- unfettered, tion need not be wholly to the destruc- tion the of state’s interest. There is no doubt but that constitutionally valid can restrictions be App Dissent Partial cross-examination, of placed defendant’s Mississippi, supra.7 Chambers so, This what being this should consider As to the defendant. should be afforded remedy above, is that I am of view defendant noted to offer evi opportunity to the such only entitled aby be afforded opportunity This should dence. hearing may be to trial court where remand time the defendant offer held at which sought It fol which he ask. hearing proffered evidence upon that lows light rule on its in admissibility would judge is forth If the evidence the standards set herein. of inadmissible, af the conviction should be ruled admissible, new trial be If should firmed. ruled ruling, point in I guidance For his would ordered. McLean, People v 71 Mich 38 NW 917 Whitfield, cases for the These stand 228 NW2d general rule as a evidence proposition is parties acts with third specific activity of sexual is inadmissible; in rare instances evidence only It incumbent upon sort admissible. tie strongly up proffered case; particular fishing expedi to the facts be, been, have always tions and will continue is so upon. frowned This all instances because protection complaining of the witness emphasized degree. problem It should be is one With motives, question sought legislation laudable eliminate backers aspect rape prosecutions, part an due in to archaic unfair surrounding doing, they In constitu- notions the crime. so crossed the only line. It is because that was crossed that the statute tional line must, part. required found to And what is be unconstitutional outright repeal keeps adjustment rather an it within not constitutional bounds. constitutional but restrictively the the A less drawn statute can avoid drawn, present statute. Once so infirmities encouraging rape prosecutions thrust of the state’s valid interest can be lenge. given possible play chal- the fullest free from constitutional Partial Dissent N. J. legitimate proper concern. The interest is not example, constant, however. For the state’s in- probative in situations where the terest diminishes outweighs clearly prejudi- its value of the evidence give judge sum, In I would discre- cial effect. emphasize tion, be exercised I should but general cautiously, constantly aware of the rule against admissibility.

Additionally, opinion, I in all cases after this bring prosecutor would recommend that preclude questioning such motion in limine to hearing An in would then be evidence. camera admissibility held to of the evi- determine protect dence. This course of conduct would both and the defendant. again judges This Court should stress to trial that, in the rare instances where cross-examina- hearing, they tion is allowed after an camera judicial responsibil- should not then abdicate their ity running proceedings allowing defense harassing counsel a free hand in a witness. When proper defense counsel exceeds the cross-examination, character of judge empowered always to cut him off. As was said in Alford v United States, 687, 694; 282 US 51 S Ct 75 L Ed 624 * * * duty protect "[t]here [a is a wit- questions go beyond ness] from the bounds which proper merely harass, an- noy or humiliate him”.

Finally, argument re- defendant’s last must be jected. There was sufficient evidence on the record support finding guilt beyond a reasonable charged People Booth, doubt on the crime. App 466; 228 NW2d 425 above, As noted I would hold that the eviden- provision tiary code is un- of the criminal sexual defendant’s constitutional because it violates Partial Dissent rights of cross-examination and confrontation. As provision can be severed from the rest of the statute, my holding in no way provisions affects the statute opinion. not discussed in this I would for proceedings remand in conformity with this opinion.

Case Details

Case Name: People v. Dawsey

Court Name: Michigan Court of Appeals

Date Published: Jul 18, 1977

Citation: 257 N.W.2d 236

Docket Number: Docket 27675

Court Abbreviation: Mich. Ct. App.