People v. Hackett

v HACKETT PEOPLE PAQUETTE PEOPLE (Calendar 4, 2, 67291, Argued January 69249. Nos. Docket Nos. 3). 28, 1984. 1,1985. February December Released Decided in the Grand Traverse Circuit Charles R. Hackett was convicted J., Court, Forster, of assault with intent to commit Charles M. trial, penetration. defen- Prior to the court denied the sexual complain- reputation motion to admit dant’s specific of ant’s sexual conduct and of instances Walsh, P.J., Appeals, D. F. and R. B. conduct. The Court of JJ., Holbrook, Jr., unpublished in an Burns and D. E. reversed 51427). (Docket per people appeal. opinion curiam No. Court, Paquette in the Tuscola Circuit James was convicted Clements, J., first-degree of criminal sexual conduct. Martin E. trial, During reputation evidence of the the court excluded grounds on that it was irrele- sexual conduct prejudicial and that it to the vant to the issue of consent was P.J., MacKenzie, Appeals, prosecution’s and case. The Court (Docket Walsh, JJ., Cavanagh M. D. F. affirmed No. F. and 54814). appeals. The defendant opinion Boyle, joined by Chief Justice In an Justice Brickley, Ryan and Justice Cava- Williams and Justices nagh only, Supreme Court held: in Hackett reputation rape-shield Application of the statute to exclude complainants’ sexual conduct under the facts of evidence of the right to confrontation. the cases did not violate the defendants’ rape-shield parallel provisions in the 1. The statute and policy con- determinations that sexual Rules Evidence are impeach- and for duct or as evidence of character References for Points in Headnotes 2d, 29 Am Jur Evidence 342. § [1-6] 2d, Rape seq. 65 Am Jur 82 et § restricting "rape Constitutionality of evidence shield” statute use experiences. of victim’s sexual 1 ALR4th 283. admissibility, rape prosecution, of in forcible Modern status unchastity. complainant’s general reputation for 95 ALR3d 1181. rape prosecution, admissibility, Modern status of in forcible complainant’s prior sexual acts. 94 ALR3d 257. People y Hackett ment, perhaps logically relevant, legally while is not relevant. Neither the Confrontation Clause of the Sixth Amendment nor process right upon due confer an unlimited a defendant to have any all relevant evidence admitted or to cross-examine on subject. guaranteed opportunity by A defendant is a reasonable testimony. the Sixth Amendment to test truth of the a witness’ enacting general rule, By exclusionary Legislature 2. a the that, recognized cases, majority in the vast of evidence of a others, rape victim’s sexual conduct with and sexual reputation, prove when offered to that the conduct at issue was general impeachment or consensual for is inadmissible. How- ever, it was not intended that evidence of sexual conduct never situations, may In be admissible. certain limited such evidence relevant, only may required be but its admission be to preserve right a defendant’s constitutional to confrontation. proffers complainant’s prior Where a defendant evidence of a purpose showing sexual conduct for the narrow of the com- bias, plaining always witness’ the evidence would almost circumstances, material and should be In admitted. certain complainant’s proba- evidence of a sexual conduct also be making tive of a ulterior motive for a false charge. Additionally, permitted a defendant should be to show rape that the has made false accusations of in the past. admissibility 3. The determination of of rape of a victim is entrusted to the sound discretion of the trial obligated initially court. The defendant is to make an offer of proof proposed as to the evidence and to demonstrate its purpose sought relevance to the for which to be admitted. showing relevancy Unless there is a sufficient in the defen- proof, deny dant’s offer of the trial court must the motion. If proof there is a sufficient offer of as to a defendant’s constitu- confrontation, right tional simply to as distinct from use of impeachment, sexual conduct as evidence of character or for evidentiary hearing the trial court must order an in camera to admissibility light determine the of such evidence in of the inquiry. hearing, constitutional At the the trial court has the responsibility scope to restrict the of cross-examination to prevent harass, questions annoy, which would or humiliate the guard against fishing expeditions. victim and to mere The trial possess power discretionary court continues to the to exclude any purpose probative relevant evidence offered for its where outweighed substantially preju- value is the risks of unfair dice, issues, misleading jury. hearing confusion of the The procedure accomplishes required balancing. hearing best the A 421 Mich admissibility presence jury to determine the held outside rights protecting privacy promotes interests in the state’s safeguards alleged rape time victim while at same Furthermore, procedure right trial. to a fair defendant’s appellate for review. record of the evidence establishes a cases, evidentiary hearing was In no in camera 4. these However, on the because the record established conducted. proof adequate purposes offer of in each case is defendant’s review, appellate the cases need not be remanded for such Hackett, right hearing. not denied his the defendant was proffered In addi- evidence was irrelevant. confrontation. tion, given opportunity present was the defendant complainant’s past jury homosexual en- with evidence of the prisoner the same race as the defendant as counter with a tending in the encounter at issue. In to show his consent proffered Paquette, evidence did not meet a minimal relevancy. threshold of Exclusion of the evidence did not de- prive the defendant his of confrontation. Kavanagh, concurring, Justice stated that evidence of a person’s prior consensual sexual conduct is not admissible in prosecution purpose of criminal sexual conduct for the proving person activity consented to sexual on the conduct; giving charge occasion rise to a of criminal sexual it is however, admissible, if it the involved defendant or if it is semen, origin pregnancy, of offered to show the source or or disease. absolutely prohibits 1. The criminal sexual conduct act the admission of evidence of sexual conduct between a victim of person any criminal sexual conduct and other than the defen- except semen, disease, origin pregnancy, dant to show the or only but if it is material to a fact at issue in the case and if it is probative prejudicial. categorical more than Such exclusion is simply not warranted the because excluded evidence is relevant only relevancy in a few cases. The of whole classes of evidence priori knowing purpose cannot be determined a without the for which it is offered. Not until the issues are framed at trial can repre- the relevance of such evidence be known. The statute legislative sents a determination that in most such evi- cases categorically dence is irrelevant. It cannot be said the prejudicial prior always substantially effect of sexual conduct outweighs probative its value. sophisticated approach 2. A more to admission evidence of prior Michigan sexual conduct of a victim is embodied in the rule, providing Rules of Evidence. The for admission of past evidence of a victim’s sexual conduct with the defendant v Hackett showing origin purpose the the source or or where offered for semen, disease, pregnancy, purpose on the or focuses approach provides is offered. Such an which the evidence rights more realistic accommodation of the of defendants accomplishes salutary goals the of the statute without sacrific- ing right present Accordingly, the relevant evidence. the supersedes provisions of act for Rule of Evidence the the prior of evidence of a victim’s sexual conduct. admission Hackett, reversed.

Paquette, affirmed. Levin, dissenting, evi- Justice stated that the exclusion of complainants’ prior history sexual cases dence these justified protecting complainants cannot be as a means of the cases, harassing from brutal or cross-examination. In both the prove complainants’ prior prepared to the defendants were history testimony sexual of other witnesses. Nor can the proffered ground justified exclusion of the evidence on the protect complainants exposure that it will the from of embar- rassing humiliating prior history spouse, rela- or sexual to a tives, friends, general public. jury or the The nature of a trial is offered, potential such that when evidence is becomes public matter of record. The defendant has an absolute proof. make an offer of Generally, all relevant evidence is admissible. Evidence that only prior experience generally demonstrates sexual irrele- cases, however, properly vant and is excluded. In these people seek to exclude the not because it is irrelevant evidence offensive, might truly jury but because misuse it. If offensive, people probably irrelevant and would not be defendant, offering by by harmed its admission because the evidence, harassing Hackett, jury. prof- would lose the assumption fered evidence was relevant to rebut an and infer- jury ence that a white man not solicit or would consent Paquette, sodomy by to an act of a black man. In the evidence assumption jury was relevant to rebut an and inference married, pregnant engage that a woman does not seek to addition, proffered casual sexual relations. In evidence of obtaining statement that she was not sexual satisfaction from her husband is not rape conduct and is not within the terms of the victim shield tending probable law and is relevant as to make it more activity consented to sexual than it would be without such evidence. (1982) 773; App 319 NW2d 390 affirmed. 421 Mich 338 op

Opinion the Court Rape — — 1. Sexual Conduct Evidence of Prior Sexual Criminal Conduct. Generally, rape prior evidence of a victim’s sexual conduct or reputation, prove general when offered to consent or for im- however, inadmissible; peachment is admission of such evidence required preserve right where offered to a defendant’s confrontation, bias, complaining such as to show a witness’ making charge, ulterior motive false or false accusa- (MCL 404). rape 750.520j; 28.788[10]; tions of MSA MRE Rape op — — 2. Criminal Sexual Conduct Prior Evidence Sexual Conduct. admissibility rape of evidence of the of a victim is only within the discretion of the trial court where the defen- right implicated; upon showing by dant’s to confrontation is the defendant the evidence offered is relevant for the preservation confrontation, of the defendant’s as dis- impeachment, tinct from evidence of character or for the court hearing admissibility must order a in camera to determine scope prevent which the of cross-examination is restricted to questions harass, annoy, that would or humiliate the victim guard against fishing expeditions; during and to mere hearing, power the court retains its to exclude relevant evi- probative substantially outweighed by dence where its value is issues, prejudice, misleading risks of unfair confusion of or (MCL 404). jury 750.520j; 28.788[10]; MRE

Concurring Kavanagh, J. Rape — op — 3. Criminal Sexual Conduct Evidence Prior Sexual Conduct. person’s prior Evidence of a consensual sexual conduct is not prosecution admissible in a of criminal sexual conduct for the purpose proving person activity that the consented to sexual giving charge on the occasion rise to a of criminal sexual conduct; admissible, however, it is if it involved the defendant origin semen, or if it is offered to show the source or (MRE pregnancy, 404[a][3]). or disease Rape — — 4. Criminal Sexual Conduct Evidence of Prior Sexual Conduct. prohibition The absolute of the criminal sexual conduct act against the admission of evidence of sexual between a conduct any person victim of criminal sexual conduct and other than except semen, origin pregnancy, defendant to show the disease, only but if it is material to a fact at issue in the case probative and if prejudicial, it is more than is not warranted v Hackett

simply only because the excluded evidence is relevant in a few cases; relevancy of whole classes of evidence cannot be the knowing priori purpose determined a without the for which it offered; not until the issues are framed at trial can the (MCL 750.520j[l]; relevance of such evidence be known MSA 28.788[10][1]). Rape — — 5. Criminal Sexual Conduct Evidence of Prior Sexual Conduct. provides The Rule of Evidence which for the admission of evi- past dence of sexual conduct of a victim of criminal sexual conduct if it involved the defendant or where it is offered for purpose showing origin semen, preg- the the source or of nancy, supersedes provision or disease for admission of such because, by evidence in the criminal sexual conduct act focus- ing purpose offered, provides on the for which the evidence is rights a more realistic accommodation of the of defendants and accomplishes salutary goals of the statute without sacriñc- (MCL ing present 750.520j[l]; relevant evidence 28.788[10][1]; 404[a][3]). MSA MRE

Dissenting Opinion Levin, J. Rape — — 6. Criminal Sexual Conduct of Prior Evidence Sexual Conduct. complainant’s prior Exclusion of relevant evidence of a sexual history justified protecting cannot be as a means of the com- plainant harassing from brutal or cross-examination where the prove history through testimony defendant offers to complainant ground witnesses other than or on the protect exposure the evidence will from embarrassing humiliating prior spouse, history to a relatives, friends, general public; jury or the of a nature potential public trial is such that evidence offered is a matter of (MCL 750.520j; 28.788[10j). record MSA Kelley, Attorney

Frank J. General, Louis J. Caruso, General, Foresman, Solicitor John D. Pros- ecuting Attorney, Hackett, in Stermer, and G. Scott Prosecuting Attorney, Paquette, and Michael Attorney Nickerson, General, A. Assistant for the people. Jr.) (by Graff, Graff & Hunt Rex O. for defen- dant Hackett. Mason) (by

Mason & Mason Michael A. Paquette. defendant Mich the Court to consider granted leave J. We

Boyle, statute, MCL rape-shield constitutionality 28.788(10), in these two applied as 750.520j; of the statute application cases. We hold proce- defendant’s at did violate the cases bar the judg- We affirm rights. dural or substantive Paquette Appeals ment of the Court in Hackett. reverse

I challenge in cases the trial Defendants both statute, rape-shield MCL application court’s 28.788(10)(1), in excluding evi 750.520j(1); sexual conduct with dence of the victim’s other than the defendant as violative persons right Amendment of confrontation and their Sixth cross-examination. this against

The same constitutional attack stat- in ute addressed this Court recently was Arenda, (1982), v 1; 416 330 814 Mich NW2d of the statute on its upheld validity where we applied face and as under the facts of that case. determining constitutionality, statute’s facial the majority stated: right

"The to confront and cross-examine is not with- out limits. It does not include a to cross-examine on irrelevant legitimate issues. It other bow to accommodate in process, interests the criminal trial see Stubbs, 204; 2308; Mancusi 408 US 33 L Ed S Ct [v interests, (1972)], 2d 293 and other United social see Nixon, 683; 3090; States v 418 US 94 S Ct 41 L Ed 2d (1974). law, rape-shield exceptions, "The specific with certain designed was to exclude of the victim’s sexual persons Although conduct with other than defendant. such evidence was in rela- admissible at common law People v Hackett op the Court issues, practice tion certain has repeatedly been courts, question. increasing drawn into fre- recognized quency, the minimal have relevance of this evidence, see Anno: Modern status of admissibility, in prosecution, statutory rape complainant’s prior sex- general reputation ual acts or 1300, unchastity, ALR3d Anno: and Modern status of admissibility, rape prosecution, forcible prior sexual acts, 94 257. ALR3d prohibitions "The contained in the rape-shield law legislative that, represent determination in most cases, such evidence is irrelevant. This determination does In lack rational basis and not unreasonable. fact, it is consistent with the results reached issue, judiciary resolving this see Pope State ex rel Court, Superior 22; Mohave 113 Ariz 545 P2d 946 prohibitions "The in the law are also a reflection of legislative the histories, inquiries determination into sex relevant, even when minimally carry a dan- ger unfairly prejudicing misleading and jury. dangers Avoidance the legitimate of these is a interest process, criminal trial prohibi- see MRE 403. The indirectly tion by removing furthers the same interests unnecessary of crimes. prosecution reporting deterrents time, "At prohibitions the protect legitimate same the expectations of privacy. Although this interest not compelling as above, as those mentioned it is entitled consideration, to 665; Branzburg Hayes, see US 2646; 92 S Ct 33 L Ed 2d 626 "The protected interests by rape- furthered the significant shield law are ones. Given the minimal relevance cases, of such evidence in prohibi- most the do deny tions not significantly diminish defendant’s right of (Emphasis original.) confrontation.” in People v Arenda, supra, pp 8-11. Arenda, sought defendant to admit the eight-year-old of victim’s possible sexual con- with explain duct others to the victim’s ability describe the sexual acts that allegedly occurred Mich 338 Opinion or the Court ability this re- that inference any dispel and to defendant. Bal- with the experiences from sulted this nature of prejudicial potential the ancing behind legislative purposes evidence, of the in view law, minimal probative the against rape-shield the found that the evidence, the Court value in precluding law rape-shield the of application infringe on defendant’s did not such evidence other Court noted The of confrontation. the which defendant by available were means victim as to his the minor could cross-examine Court, alleged conduct. to describe ability however, determina- case-by-case future left sets of under different question whether tions would prohibitions statute’s rape-shield facts Id., 13. The applied. p as be unconstitutional such a determination by method which proper courts was addressed be made would opinion. majority II determining faced the task of We are here the rape-shield application the constitutional Be- statute two different factual circumstances. however, find we deciding question, fore in Ar- further necessary explicate our decision enda. parallel provisions

The statute and its Evidence, 404(a)(3), Michigan MRE consti- Rules determination, tute a sexual conduct or policy as evidence of character and for im- relevant, peachment, is not perhaps logically while (1st McCormick, ed), legally relevant. Evidence 155. The into protection inquiry privileged § communication, and the preclusion hearsay, evidence, 404(b), limitation bad act MRE examples are familiar of instances which People 347 Hackett v Opinion of the Court admissibility probative evidence is restricted superior because of a In- competing policy. deed, preclusion conduct, of specific acts of opinion or as circumstantial person is sought whose character to be engaged shown in the same conduct at the time in was question not received at common law because potential of its for time prejudice, consumption, and distraction of the factfinder from the issues. McCormick, p otherwise, 325. Stated neither Clause, Sixth Amendment Confrontation nor due process, a an confers on defendant unlimited all to admit relevant evidence or cross-examine on Evans, See Dutton v subject. any 74; 400 91 US S (1970). 210; 27 L People Ct Ed Hayes, Cf. v 2d (1984). 271; 421 Mich 364 NW2d 635 It is clear that equally while the extent of cross- examination is within the discretion of the trial court there is a dimension Confrontation guarantees Clause that to defendant a reasonable opportunity to test the truth testi- of witness’ States, Alford v United mony. 687; 282 US 51 S Ct (1931).1 218; L 75 Ed 624 rule, By enacting general exclusionary Legislature recognized that in the vast majority cases, a rape evidence of victim’s 1Implicit holding rape-shield in our in Arenda that the statute was presumption Legislature on constitutional intended its face was the enacting statute that it not conflict with constitu requirements. 511, 536; McQuillan, tional v See Mich (1974). statute, Alaska, NW2d 569 415 Prior to enactment of the Davis v 308; (1974), 1105; US S a 39 L Ed 2d 347 and Alford United v States, supra, had both held that a defendant must have some opportunity long part prosecution to show on the bias of a and a witness Michigan authority line accord that of other state courts, held that interest bias of a in a witness criminal case is Field, proved, People 173; material and 422 we the 287 NW (2d (1939);Wigmore, ed), background, Evidence 1368. Given this § unlikely Legislature consider that either the or the drafters of Michigan entirely” Rules of Evidence intended "scuttle evidentiary bias, availability of cross-examination Luce v United States, —; 460; 469 US 105 S Ct 83 L Ed 2d 443 338 421 Mich 348 of Court reputation, when others, sexual conduct with at was conduct issue that prove to offered is inadmis- impeachment general or for consensual Arenda, The supra, 416 Mich 10. v People sible. of character a variation simply is purpose first of evidence conduct. circumstantial evidence as bearing on only matter is a collateral The second held it has been to which credibility as general denied, United may be that cross-examination 1963). (CA 2, Cardillo, The v F2d 606 States 316 that evi- Legislature has determined fact that not as char- conduct is admissible dence of sexual for prove conduct or to consensual acter evidence not however purposes is general impeachment conduct that declaration evidence recognize certain We never admissible. situations, evidence be may only limited such relevant, required its admission be may but right to con- a defendant’s constitutional preserve prof- example, For where the defendant frontation. complainant’s of a sexual con- fers evidence showing com- purpose duct for the narrow bias, this would almost be plaining always witness’ admitted. Commonwealth material and should be 181, v Joyce, 222; 382 415 185-186 Mass NE2d Alaska, (1981); Davis v 308; see also 415 US 94 S L 1105; Ct 39 Ed 2d 347 Moreover circumstances, certain complainant’s of a evidence sexual conduct also be of a com- probative plainant’s making ulterior motive a false Jalo, State v charge. 845; 27 557 P2d 1359 App Or Howard, v (1976); State 53; 121 457 426 A2d NH (1981). Additionally, per- the defendant should be mitted to show made has v false past. People rape accusations Werner, 123, 127; (1922); 221 Mich 652 NW Mikula, People v 108, 115-116; App v Hackett Opinion of the Court (1978); Pope rel NW2d 195 State ex Mohave supra, Superior Court, 29. Ariz admissibility is entrusted determination of the trial court. exer- to cising sound discretion discretion, the trial court should its significant legislative purposes un- mindful of the derlying rape-shield always statute and should of a favor exclusion conduct its not un- sexual constitutionally where exclusion would

abridge the defendant’s confrontation.

Ill procedure employed by The to be trial the court evaluating admissibility in the of evidence of the complainant’s prior sexual conduct is in found the rape-shield provision statute’s for in camera hear- ings. provision The relevant reads as follows: "(2) proposes If the defendant to offer evidence de- (l)(a) (b), in scribed subsection or the defendant within days arraignment after the on the information shall proof. may file a written motion and offer of The court hearing order an in camera to determine whether the proposed evidenceis admissible under subsection If during new information is discovered the course of the trial that make the evidence described subsec- (l)(a) (b) judge may admissible, tion camera or the order an in hearing proposed to determine whether the (1).” evidence is admissible under subsection MCL 28.788(10)(2). added.) 750.520j(2); (Emphasis provision permit

Whether we construe this to hearings the extension of in camera to include scope consideration of evidence outside the of sub- (1) right section where a defendant’s confrontation op the Court ground implicated,2 the we or whether has been scope hearings on this Court’s of such broadened prac- authority rules to of hearing establish constitutional tice and procedure procedure,3 the conclude that we accomplish required bal-

will best hearing presence ancing. the the outside the A held promotes admissibility jury to determine rights privacy protecting interests state’s rape alleged the same time while at victim right safeguards a fair trial. to defendant’s procedure Furthermore, record establishes appellate of the trial for review of court’s evidence ruling. obligated initially to make an is defendant proposed proof and to

offer as evidence to purpose to for its relevance which demonstrate it sufficient sought there is a to be admitted. Unless showing relevancy in the defendant’s deny proof, will the motion. offer of the trial court proof to a If dant’s tinct dence is a offer of as defen- there sufficient confrontation, dis- as constitutional simply evi- from use of sexual conduct as impeachment, trial character hearing evidentiary court an in shall order camera admissibility determine the of such light inquiry previously of the constitutional hearing, has, as stated. At this always, the trial court responsibility scope to restrict prevent questions cross-examination to which annoy, harass, would or humiliate sexual assault guard fishing against expedi- to victims and mere 2 analogous rape-shield similarly have Other states with statutes interpreted provide respective to for an their statutes in camera hearing evidentiary opportunity to an offer afford the defendant to persons complainant’s prior evidence of a sexual conduct third Howard, required. supra, constitutionally where it State 121 NH v 59; 70, (1979); Jalo, McCoy, 71; v 274 SC 261 SE2d 159 State v State (Fort, J., concurring supra, App part dissenting 27 857 Or part). 1963, 6, 5. Const art § People v Hackett Opinion of the Court States, tions. Alford v United supra, 282 US 694. Moreover, the trial court continues possess to discretionary power to exclude relevant offered for any purpose where its probative value is substantially outweighed by the risks of unfair prejudice, issues, confusion of or misleading the jury. 403; See MRE DerMartzex, 410, Mich 415; 213 NW2d 97 (1973); People v Oliphant, 472, Mich 489-490; 250 NW2d 433 again We emphasize that in ruling on the admissibility proffered evidence, the trial court should against rule the admission of evi- dence of prior sexual conduct with persons third unless ruling would unduly infringe on the defendant’s constitutional to confrontation.

IV In the two bar, cases at there was no in camera evidentiary hearing However, conducted. because the record established on the defendant’s offer of proof in each case is adequate for purposes of appellate review, we need not remand these cases for such a hearing to be held. We therefore exam- ine each case separately under the constitutional standard set forth herein.

A. Hackett trial,

Prior defendant made an proof offer of to admit evidence of complainant’s homosexuality for the dual purposes of impeaching his credibility and as bearing on the defense of addition, consent. In defendant sought to introduce specific instances of the complainant’s prior homo- sexual conduct with prisoners of the same race as defendant to circumvent the inference would improbable that a white prisoner male would consent sodomy by black male prisoner. 338 Mich Opinion the Court argues, the the appeal, to in addition defendant

On level, that purposes the trial at advanced homosexuality complainant’s proffered evidence of get to and motive to his bias show was relevant purposes Because these at defendant. back were proof, specified offer in defendant’s not preserved properly review. they for our are supra, 103(a)(2);People Arenda, 416 Mich v MRE 14. complainant’s proffered of the evidence

As to impeach unchastity reputation for homosexual generally credibility witness, we observe as a his complain- logical a no nexus between there is that unchastity, reputation in- whether ant’s activity, and heterosexual or homosexual volves the character or untruthful- trait for truthfulness People 25, Williams, 45; 330 v ness. See NW2d dence was argues that this evi- Defendant

necessary to rebut nothing testimony anal he knew about trial sex and where the that testimony preliminary his examination being note that he denied a homosexual. We being deny trial did not at problem on and the rebuttal homosexual point anticipated defen- never materialized as dant. com-

Defendant also that claims evidence plainant’s specific for, of, homo- acts par- prisoners conduct, male with black necessary ticular, should have been as admitted argues establish his defense of consent. Defendant prob- that such evidence would have made it more jury complainant, able for the to believe prisoner, white male consented to or solicited sodomy defendant, act of male with the a black prisoner. People supra, Williams, found this Court proffered vie- on sexual assault v Hackett op the Court irrelevant was as a alleged prostitute status

tim’s credibility. of consent and the issues to is a person that a fact Like prostitution, 40-46. alone, logical little or no has homosexual, standing acts prior sexual the excluded relevance between credibility. of consent the issues evidence sought to introduce Thus, to defendant the extent as a homo- reputation complainant’s to evidence as for homosexuality acts of specific or to sexual consent, we of bolstering his defense purpose court and the trial is irrelevant find such evidence it. properly excluded where

However, question presented is a closer sought dispel assumption to was such evidence act, espe- such an most would believe jurors that element, to likely is not given the interracial cially Nevertheless, we do not believe voluntarily. occur to right constitutional denied his defendant was opportu- since he had a reasonable confrontation per- have to evidence which would nity introduce discriminating appraisal complainant’s mitted a specific consent. Evidence of a instance possible alleged complainant homosexual conduct between occurring three days and a black male inmate at question brought in was out before incident trial as as of two seminal well stains of fluid which have been from more than one to person. right The defendant was not denied his given confrontation since he the opportunity, was fashion, in though even limited expose jury past encounter complainant’s homosexual prisoner with a as same race as defendant tending to his show consent this instance. Paquette B. trial,

At defendant sought to introduce evidence unchas- concerning complainant’s a tity, specific instance Mich 338 Opinion of the Court sexual conduct which she met a man allegedly in a him bar and left with for consensual motel, and, relations evidence of a finally, statement made that she was not getting enough sexual satisfaction from her hus- band for the sole purpose to show consent.

We find proof defendant’s offer of inadequate is to have even met the minimal threshold of rele- vancy, prerequisite to invoking the constitutional Arenda, standard. As we stated in supra, the Sixth Amendment to confrontation requires only the defendant permitted to introduce rele- vant and admissible evidence. 416 Mich 8. Rele- vant evidence is defined as having "evidence any to make tendency the existence of fact any of consequence to the determination of the action more probable or probable less than it would be without the evidence.” MRE 401. general rule,

As a evidence of a complainant’s prior sexual unchastity, the form of reputation evidence or a specific conduct, instance of has little or no relevancy to the issue of complainant’s con- sent with defendant as to the incident in question. The rationale for this rule was cogently expressed in a recent federal court decision involving

a to confrontation challenge to rule 412 of the Fed- eral Evidence, Rules of the federal counterpart Michigan’s rape-shield statute, as follows: "The constitutional justification excluding reputa- for tion opinion and evidence rests on premise. First, a dual an accused is not constitutionally present opinion entitled to irrelevant Second, evidence. reputation and concerning past victim’s sexual behavior are not relevant indicators of the likelihood of her consent to a specific sexual act or of her veracity. Privacy of Rape Hearings Victims: on H R. 14666 and other Bills Before the Subcomm. on Criminal Justice of the Committee on the Judiciary, Cong, 94th 2d Sess Indeed, 14-15 Hackett v op the Court 412, leading rule Congress enacted before even Kasto, v subject, United States on the federal case (CA 8, 1978), in the ab- 268, stated 271-272 F2d extraordinary circumstances: sence " unchastity, whether rape victim’s of a 'evidence general reputa- concerning her testimony the form of testimony concern- direct or cross-examination tion or defendant, persons other than ing specific acts with gen- probative either of her insufficiently ordinarily is consent to inter- or of her credibility as a witness eral course with particular on the occasion the defendant prejudicial effect.’ outweigh highly its ... generally have reached legislatures and courts "State prepared to state that We are not the same conclusion. justify admis- will never extraordinary circumstances preserve a defendant’s constitu- evidence to sion of such tional case, however, hearing in rule 412 rights. The record of the deeming for discloses no circumstances classified of the evidence that items 1-5 is unconstitutional.” the rule’s exclusion States, Doe v United 1981). (CA 4, 43, 47-48 F2d circumstances,4 Therefore, extraordinary absent specific unchastity complainant’s conduct past instances irrelevant persons ordinarily with third to show consent. inadmissible case, extraordinary In there are no present to take this in the record circumstances disclosed general inadmissibility. case out of the rule of to sex- have consented complainant may fact a man past time in the activity ual at some (CA 271, 8, 1978), Kasto, 268, fn 2 584 F2d United States following examples gave which would of circumstances court enhance the probative value of this evidence: might explana- the evidence is "Such circumstances include where trial, physical is in evidence at such as tive of a fact which semen, physical presence indicating pregnancy, condition or the victim’s bias, intercourse, to establish or where the evidence tends surrounding charge rape. prejudice, Sexual in or an ulterior motive engaged history might the victim has also be relevant where prior pattern clearly to the conduct immedi- of behavior similar omitted.) (Citations ately in issue.” Mich 338 Opinion of the Court defendant, in other than the whom she met a bar accompanied sufficiently motel, to a is not hand to relevant to the similar to the facts at Here, of consent. the simultaneous sexual issue strangers, and two one acts between defendant, of whom was the occurred in the cab of strangers picked up a truck after the had complainant on the road near her car which had gas. complainant’s alleged Moreover, run out of reputation engaging in consensual sexual rela- past, prove in tions did so with defendant at the does not tend to that she question.

time We find that the trial court’s exclusion of this proffered complainant’s prior evidence of persons conduct defendant, other than the specific either as instances of con- deprive right duct, did not defendant of his confrontation because this does not extend to cross-examination on irrelevant matters. remaining proffered evidence concerned the

complainant’s statement of her sexual dissatisfac- physical tion at home due to the condition of her agree Kavanagh’s husband. We with Justice ob- servation that this evidence does not fall within rape-shield the terms of the statute since techni- cally it is not evidence of sexual conduct. The Appeals correctly Court of found no abuse of the excluding trial court’s discretion in this evidence ground irrelevancy on the because the com- plainant separated was from her husband at the question. time of the offense

V Having examined each of the two cases before us light of the constitutional standard set forth herein, application we conclude that rape-shield statute the trial court under the 357 Hackett by Opinion Kavanagh, J. particular facts these cases did not violate the defendants’ to confrontation.

Accordingly, Hackett, we reverse the decision Appeals of the Court of and reinstate the defen- Paquette, whereas, conviction; we affirm dant’s Appeals. the decision of the Court of Williams, C.J., Ryan, Brickley, and and Cav- JJ., J. anagh, Boyle, concurred with J.

Kavanagh,

I Defendant Charles R. Hackett was convicted penetration, assault with intent to commit sexual 28.788(7)(1). 750.520g(1); MCL The offense alleged was to have occurred in a barracks bath complainant room while the defendant and were Camp operated Pugsley, facility by inmates at a Michigan Department Ricky of Corrections. R. August Vanhohenstein testified that at a.m. on edge 28, 1979, the defendant sat on the com plainant’s pressed pair against bunk, of scissors his neck and ordered him to the bathroom. In a complainant, stall, toilet dant testified the the defen compelled complainant to submit to an at tempt theory at anal intercourse. The of the de happened fense was that the incident never complainant that, did, if it solicited and consented argued to the act. The defense that defendant was being up by set in retaliation over involving picture. an incident Defendant did not testify. trial,

Prior to defense counsel moved to admit complainant’s reputation evidence of the for homo- unchastity specific and of instances of the Camp Pugsley. sexual conduct at Mich Kavanagh, J. prove the com- Defense counsel offered to plainant, person, a white was a homosexual who enjoyed associations of a sexual nature with black particular inmates in physical embracing complainant and that he maintained close touching contact with inmates prove them. Counsel also offered to that traded homosexual favors within the prison marijuana. for benefits such as Such evi- probability dence was said to be relevant that contact needed, assumption to the complainant would consent to or solicit sexual defendant. The evidence was also

argued counsel, defense to circumvent an improbable

that would be that prisoner sodomy by white male would consent to prisoner. Lastly, black male defense counsel ar- gued complainant’s reputation that evidence of for unchastity pur- homosexual pose was admissible for the impeaching credibility his because his anticipated testimony previously that he had not engaged in sexual contact with other inmates. Court, the second case before the James Paquette and another individual were convicted of first-degree, criminal sexual conduct MCL 28.788(2). giving 750.520b; MSA The transaction charges rise to the occurred when the defendant picked up complainant and his friend on a gas. car, road near her which had run out of The complainant, defendant, and his friend all testified occurring to sexual acts in the cab of a truck. The complainant, however, testified that she was com- pelled by physical to submit to the sexual acts personal injury. force and threats of The defen- complainant dant and his friend testified that the initiated the sexual acts and consented.

During trial, the issue was raised whether de- testimony fense counsel could introduce that complainant unchastity. had a He sought testimony also to introduce of what he said People v Hackett Kavanagh, J. was a circumstance similar to the one for which trial, defendant was on that shortly before the alleged, complainant incident had met a man in a him bar left with enjoy rela- night tions that in a motel. Lastly, counsel wished testimony introduce had made a statement she had received insuffi- cient sexual attention from her husband. The prof- argued fered evidence was to be relevant to the probability consent to the sexual acts.

II cases, In both defense counsels’ proffered evi dence was excluded the trial courts under different interpretations of MCL 750.520j(1); MSA 28.788(10)(1). statute, which is part of the act, criminal 266, sexual conduct PA MCL 750.520a et seq.; 28.788(1) seq., provides: et specific "Evidence of instances of the victim’s sexual conduct, opinion evidence of the victim’s con- duct, reputation and evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g only unless and judge the extent that finds following proposed evidence is material to a fact at issue in the case and inflammatory its prejudicial outweigh probative nature does not its value:

"(a) past Evidence of the victim’s sexual conduct with the actor. "(b) specific Evidence of activity instances of sexual

showing semen, origin the source or pregnancy, or disease.”

The trial court excluded the evidence of reputa tion and of specific instances of prior conduct Hackett on apparently grounds of the proscrip 28.788(10)(1). tion of MCL 750.520j(1); 421 Mich 338 Kavanagh, J. applicability constitutionality and of MCL 28.788(10)(1) 404(a)(3) 750.520j(1); MSA and MRE argued by prosecution at were and the defense hearing motion, on the but the trial court did authority ruling. unpub not state the In an its opinion per Appeals curiam, lished the Court of concluded that exclusion of evidence of the com plainant’s unchastity for denied the defendant a fair trial. The Court that evi said dence should have been on admitted the facts of theory this case of the because defense that defen up dant was set and because of one witness’ testimony propositioned by that the defendant was complainant, the activity. who denied other homosexual granted appeal. We leave to Paquette The trial court read the statute as affording prof- discretion to admit or exclude the fered evidence once he determined whether it was probative prejudicial. hearing more than At a presence jury, during trial, outside the proffered court concluded that evidence was prejudicial irrelevant to the issue of consent and prosecution’s Appeals case. The Court of af- People Paquette, App firmed, 773; Mich (1982), holding NW2d 390 irrelevant as insuffi- ciently allegations similar to the evidence of the complainant’s meeting a man in a bar. Evidence of complainant’s alleged reputation unchastity, probative concluded, value, the Court had low out- weighed by encouraging the state’s interest prosecution rapists protecting from victims Further, humiliation. evidence of the statement attributed to that she received insuffi- cient sexual attention from her husband was irrel- separated evant because she was from her hus- band at the time the offense was said to have been Hackett Opinion by Kavanagh, J. to granted appeal. leave committed. We (1983). Ill appeal, 750.520j(1); the of MCL MSA validity On 28.788(10)(1) is on challenged constitutional grounds. maintain they The defendants offered to evidence, prohibited introduce relevant which was statute, by rights the contravention of their Const, VI, under confrontation US Am and Const 1963, 1, 20. prosecutors art argue the § evidence excluded the statute is always logi cally legally irrelevant, and therefore does not rights. contravene constitutional evidence, As a rule has statute been permitted life under MRE 101: "A rule statutory not conflict with these adopted rules or other Supreme rules Court is until superseded by effective rule or decision of Supreme Court.” The function of establishing of practice rules and procedure for the courts of this state com- mitted by constitution, 1963, 6, Const 5, art § exclusively Supreme to the Court. also See MCL 600.223(2); 27A.223(2). It is "a function with which legislature may meddle or interfere save as the Court acquiesce adopt and Peuler, will.” Perin v retention judicial at 531, 541; Mich 130 NW2d 4 In view of our constitutional duty govern practice procedure of the courts of Michigan, we have concluded that MCL 750.520j(1); MSA 28.788(10)(1) must give way to a more realistic accommodation of rights of defendants in crim inal cases. Accordingly, we hold that MRE 421 Mich 338

362 by Opinion Kavanagh, J. 404(a)(3) 28.788(10)(1). 750.520j(1); supersedes MSA MCL accomplish the this will

We believe sacrificing salutary goals right the of statute without the present relevant evidence. 28.788(10X1) absolutely 750.520j(1); MSA MCL prohibits of con of evidence the admission person any other the victim duct between except to the or show source than the defendant origin applies only pregnancy, semen, or The statute of disease. tried MCL 750.520b- to offenses under 28.788(2)-28.788(7). 750.520g; MSA Ordinarily, is admissible. all relevant evidence any if 402. is relevant it has See MRE Evidence tendency existence of a fact in issue to make the probable than it would to the action more or less MRE 401. Relevant be without the evidence. See trial be from nonetheless excluded substantially outweighed probative "if its value is by danger prejudice, the the of confusion of unfair misleading jury, by issues, or considerations or the presen- delay, time, needless of undue tation waste of or of MRE 403. cumulative evidence.” 750.520j(1); support MCL 28.788(10)(1), plaintiffs evi contend usually dence excluded As we noted in the statute is irrelevant. People 1, 10; Arenda, 416 v Mich (1982), represents NW2d statute "legislative cases, that, in most such determination added.) (Emphasis evidence is irrelevant.” problems two

There are contention against acquiescence our continued which militate First, in this excluded evidence is if in most statute. even cases

irrelevant, ex- statute categorical in all is cludes it not warranted dence is relevant in cases. Such exclusion simply evi- because the excluded

only a few cases. Secondly, relevancy classes of evi- whole priori, least dence cannot determined a at v Hackett Kavanagh> J. purpose knowing for which such evi- without relevancy "The is offered. evidence de- dence Bailey, pends be tried.” White on the issue to until issues Mich 155 Not are framed at prior trial can it be known whether evidence Legislature relevant, is as the sexual conduct rec- ognized in the statute under consideration. Evi- dence of sexual conduct show the source origin pregnancy, semen, or disease admis- only statute, the but if it sible under "is material proba- ato fact at issue in the case” and is more prejudicial. tive than say plaintiffs,

However, even those cases logically relevant, where the excluded evidence is outweighed always prejudicial effect, it is its for that reason is inadmissible. plaintiffs’ argument reflects a misunder- standing inquiry. evidence Relevant probative "substantially excluded if its value is outweighed” by prejudicial its MRE effect. 403. relevancy Since the of evidence cannot be deter- probative mined known, until the issues are the value of the until then. evidence fortiori cannot be known

Accordingly, categori- it cannot be said cally prejudicial prior that the of effect sexual always substantially outweighs conduct evidence probative its value. plaintiffs misperceive

Moreover, the nature of prejudice probative needed overwhelm the value of evidence. Plaintiffs assert that the admis- prior sion of evidence of sexual conduct deters prosecuting. signifi- victims from While that a is problem policy, cant prejudice of social it is not the sort of weighs against probative which value of evidence. 750.520j(1); Since the enactment of MCL

28.788(10)(1), 404(a)(3), adopted the Court has MRE provides: which Kavanagh, J. of a trait his person’s character or of "Evidence proving purpose of is not admissible character particular on a conformity therewith he acted occasion, except:

[*] ^{[*] [*]} conduct, evi- prosecution for criminal sexual "In a past sexual with the of sexual the victim’s conduct of dence defendant activity specific of instances and evidence semen, preg- showing origin or of the source nancy, or disease.” rule, person’s prior of a

Under for the is not admissible sexual conduct consensual person consented to proving purpose the occasion of offense sexual conduct on admissible, however, if it charged. Such evidence if purpose or offered for the the defendant involved semen, origin preg- showing the source or disease. nancy, 404(a)(3) sophisticated approach

MRE is a more question admissibility to the statute, MRE evidence. Unlike conduct 404(a)(3) purpose focuses for which such on simply The statute excludes all evidence is offered. per third prior of conduct with evidence sexual origin of unless to show source or sons offered Moreover, semen, MRE or disease. pregnancy, 404(a)(3) correcting has the incidental benefit of prior of to which evidence discredited use put, frequently conduct has been most sexual Legislature originally which is what aroused 28.788(10)(1). enact MCL MSA 750.520j(1); A rule of which excludes a whole cate- evidence of grounds that some it gory of evidence on we, irrelevant is one which as the over- may be courts, of the evidence in our would seers rules of accept. and adopt not cannot People v Hackett Dissenting Opinion by Levin, J.

IV Hackett, In the defendant offered to admit evi complainant’s prior dence of the conduct, sexual the form and of specific instances conduct, for several purposes. record, From the appears the trial court felt bound the flat 28.788(10)(1). proscription of MCL 750.520j(1); MSA circumstances, Under these we are compelled to remand the for a case hearing before the trial court. The court must exercise discretion to deter- mine whether the evidence offered by defendant 404(a)(3). admissible under MRE is, If it defen- aside, dant’s conviction must be set his sentence vacated, must be and new trial must be had. Paquette, defense counsel proffered evidence alleged reputation for unchas tity specific and of a prior instance conduct. Rather interpreting than the statute as absolutely prohibiting the admission of such evi dence, the trial court exercised discretion to deter mine that the evidence was more prejudicial than probative. We persuaded are not the court abused its discretion. Proffered evidence of a state ment attributed to complainant that she received insufficient sexual attention from her husband was light viewed in the same Although excluded. evidence of the statement was not sexual conduct within the terms of MCL 750.520j(1); 28.788(10)(1), we are con vinced that the trial court abused its discretion in excluding the evidence. in Hack- judgment

The Appeals Court of ett should be reversed, and the case be re- should manded for further proceedings consistent opinion. Pa- judgment Appeals Court of

quette should be affirmed. (dissenting). Levin, J. Defendant Charles R. Mich 338 by Dissenting Levin, J. man, of assault was convicted Hackett, a black penetration.1 theAt to commit intent and the com- offense, Hackett both time plainant, facility man, at a residents were a white Michigan Department Correc- operated the complainant that Hackett testified tions. pair night placed a.m., at him one awakened against him to the and ordered his throat scissors stall, where, in a toilet Hackett barracks bathroom attempted intercourse. an anal act of testify at trial. Several wit-

Hackett did not however, behalf, to tes- on his nesses were called tify alleged theory support that the act of his did, it it or, if that was consensual occurred never Expert testimony complainant. solicited the complain- panel the rear that demonstrated ant’s shorts contained fluid of more seminal person. witnesses testified than one defense Other complainant it who had asked Hack- that was the accompany bathroom, ett to him to the barracks complainant and had been seen that together Hackett complainant and that and a

often "humping” had in the black inmate been observed complainant’s bunk. trial,

Prior to Hackett offer of filed written proof complainant had an "established among as a homosexual inmates at Camp Pugsley” and that had "several close he associations of a in- sexual nature” with black prove mates. plainant Hackett also offered to com- traded homosexual favors for "benefits” marijuana. such as Hackett’s written motion for admission of the evidence asserted that was relevant to show that would likely to consent to solicit sexual contact with assumption Hackett, rebut that a white 28.788(75(1). 750.520g(1); MCL 367 Hackett by Dissenting Opinion Levin, J. man a would consent to solicit sodomy man, to impeach complainant’s black and preliminary examination testimony denying he awas homosexual.

The circuit judge denied Hackett’s motion for an in camera hear conducting admission without ing to It pursuant §520j(2) the Penal Code.2 appears that the circuit judge 520j(1)3 considered § as an absolute to bar the admission of the prof fered The jury evidence. found guilty Hackett assault with penetration. intent to commit sexual The Court of Appeals reversed and for a remanded new trial. Paquette

Defendant James and a codefendant were convicted of first-degree criminal sexual con- duct.4 The complainant, a married woman who approximately was five pregnant months at that, time of the alleged rape, testified while driv- alone, ing she out gas ran on a highway. state Paquette and the stopped codefendant to push to car the side of the The highway. two men had an empty gallon jug in their truck and offered to complainant take the to a service station and then return her to her car. She testi- fied on the way station, to the service the two men could not find ten dollars that left they had in the truck. began The men to accuse her stealing ten gasoline dollars. After was dis- pensed into the truck gallon and the jug, complainant rather, was not returned car; to her Paquette’s codefendant began driving along vari- ous roads Paquette area. was seated on the passenger side of the cab and complainant was seated between the two men. complainant

The that Paquette, testified appar- 2 MCL MCL MCL 750.520j(1); 750.520j(2); 750.520b; MSA MSA 28.788(2). 28.788(10)(2). 28.788(10)(1). Levin, J. Dissenting ten taken the had not that she not satisfied

ently clothing. her her remove dollars, "help” to began Paquette according complainant, to the Then, fella- to perform her head and forced her grabbed upon made of threats because complied tio. She she was Subsequently, child. her unborn her and on the codefendant fellatio perform forced She both men. intercourse with submit The and leave the truck. to dress was then allowed and was nearby to a house walked rela- She called telephone. to use permitted police were up. her pick who came to tives was complainant the the incident and notified of examination. physical for a hospital taken con- at trial. He Paquette testified Defendant fella- engaged had complainant the firmed men, both but tio intercourse with and sexual initiated her. activity was testified that such that, ob- gasoline the was testified after Paquette tained, directed the codefendant complainant the along roads in the area. The to drive certain Paquette’s trousers complainant unzipped an act of fellatio. She did same to commenced had subsequently codefendant and both men her. Although sexual intercourse with offered a car, got her out of ride back to house, the truck to walk to her uncle’s which she just said was the road. down trial, At presence jury, but out sought com- Paquette to introduce evidence of the plainant’s unchastity, for that she had engaged in consensual sexual relations with a bar, stranger that she had met in a and that she had made a statement to the effect she was not obtaining sexual hus- satisfaction from her band. The evidence was offered as relevant on the issue consent. The circuit ruled that judge 520j. evidence was inadmissible under No in § Hackett Dissenting Opinion Levin, J. camera hearing was conducted. The jury found Paquette guilty first-degree criminal sexual con- duct and the Court Appeals affirmed.

I prosecution successful of criminal offenders —and indeed all criminal offenders —is a Rape laws, vital state interest. victim shield such as have 520j, justified protect been as a means of § ing harassing victims from cross-examination5 and embarrassing humiliating or revelation sexual history, thereby encouraging victims cooperate prosecution of offenders. The insist, defendants in the however, instant cases that application of the statute yield must to their rights fundamental to confrontation of opposing witnesses7 process and compulsory obtaining witnesses.8

A The exclusion of the evidence proffered instant cases justified cannot be as a means of protecting complaining witnesses from brutal harassing cross-examination. Hackett, the defendant’s motion for the ad- mission of evidence was introduced and denied Paquette, before trial. the defendant’s offer of proof was made out of presence jury. of the 5 Berger, trial, Rape See Man’s woman’s in tribulation: cases courtroom, (1977). L R 1, 77 Colum 12-13 Bocchino, Rape 6 See Tanford & victim shield laws and the Sixth (1980). Amendment, 128 U Pa L R 544 7 1963, 1, 20; Const, VI, applicable Const art US Am to the § states Amendment, Texas, 400; under the Fourteenth Pointer 380 v US 85 S (1965). 1065; 13 L Ed 923 2d 8 1963, 1, 20; Const, VI, applicable Const art US Am to the states § Amendment, Texas, Washington 14; under the Fourteenth 388 US (1967). 1920; 87 S a 18 L Ed 2d 1019 Dissenting Opinion Levin, J. prepared cases were defendants both testimony prior history

prove with the sexual presentation was not witnesses; of evidence other dependent ing complain- on cross-examination protect- interest Thus a societal witnesses. harassing complaining ing cross- from witnesses implicated in cases. these examination is

B proffered evi- the exclusion of Neither can justified on the cases be dence the instant complaining ground protect wit- will embarrassing exposure or humiliat- from nesses ing prior history spouse, relatives, sexual to a general public. jury friends, of a or the The nature potential of- evidence is trial fered, is such when jury’s presence, it becomes albeit out of the public an a matter of record. The defendant has proof and, if the an offer of absolute make might judge offer, the defendant refuses an oral proof. offer The court file and make written sup- transcript pressed public that cannot be are records publication by Thus from the media.9 proof history whether offers of sexual public notoriety depends on become a matter of happens on the who to be in the courtroom and media rather than on a rule of law.

II Generally, all relevant evidence is admissible.10 history generally Prior is irrelevant. It persons beyond early their be assumed that most experienced sexually teens are in one form or Court, 596, 610; Newspaper Superior 102 S See Globe Co v US 2613; Ct 73 L Ed 2d 248 10MRE 402. v Hackett by Dissenting Levin, J. jury a man a that no need to tell There is another. likely age beyond is to have certain woman partners Evidence relations. and sexual had sexual that demonstrates generally experience prior only is sexual properly excluded. and irrelevant question evidence is whether The experience history more than sexual that shows people to exclude seek be admissible. should not because is instant cases in the the evidence jury may because the but irrelevant or offensive truly irrelevant were it. If the evidence misuse probably people not be offensive, the would and by defendant, because harmed its admission jury; harassing offering evidence, lose the would "boomerang.” the evidence would prosecution seeks to the misuse that the What is Paquette jury that avoid? It is concerned will conclude that pregnant married, woman this Hackett, and, a "loose woman” homosexual relations black white man favors charges reject basis, and, men on that prem- relations. The nonconsensual sexual forcible argument thus that the of the for exclusion is ise jury to characterize the cannot be trusted complaining ing or consent- witness as a loose woman they of sexual

homosexual if hear the evidence incorrectly history, jurors as- and that will complaining if consented to sume that witness they circumstances, sex in cannot find be- those yond or he did not reasonable doubt that she consent to sex with defendants.

The defendants must fear the same kind superficial thinking part jury on the prosecutor properly fears. The defendants are complaining jurors concerned that the will see persons likely witnesses to have as who are not they acts, are consented to the sexual chaste not because being gen- persons chastity unchastity — Dissenting Opinion Levin, J. thereof and therefore irrelevant erally because, albeit inadmissible —but being generally is, in the chaste, sexual behavior charged It is "aberrant” experience, "aberrant.” jurors’ married, looking for woman to be pregnant a man to sex and it is "aberrant” for a white casual relationship with a solicit or consent to a sexual will jurors black man. At least is what most think. regard prosecutor to whether

Without Paquette complainant asked the to view the jury11 married, a and to pregnant as woman draw it improbable inference that was that she would be or, seeking impromptu, casual sexual relations Hackett, that a white man does not consent to a man, relationship homosexual with black assume and draw those infer- so typical juror may ences. The defendant has at least the same need to have the evidence of sexual history admitted juror to counter assumption and characterization of the complaining being witnesses as to unlikely consent to "aberrant” sexual behavior the defen- history Prior sexual is relevant and should be admitted when history by prosecution. is first raised See Tanford & Bocchino, Rape Amendment, victim shield laws and the Sixth fn 6 supra, p prosecution 583. If the to show the offers evidence of the chastity permitted consent, improbability the defendant should be respond competent probative to and evidence. respond There is a jury may similar where the infer improbability ment. apart testimony prosecutorial of consent from or com- People Seaman, (1895) 348, 358-359; Cf. v 65 NW 203 (similar acts of guilty knowledge defendant held admissible to show intent): and "Upon principle authority, and it is clear that where a felonious ingredient intent is an charged, essential of the crime and the act innocently done, done is claimed accidentally by to have been or mistake, or when the result is claimed to have followed an act lawfully legitimate purpose, done for a inference, or where there is room for proper such an proof it is to characterize the act producing result, other like acts knowledge, was tending guilty the same as to show purpose particular and the intent or with which the act done, presumption and to might rebut the otherwise obtain.” (Emphasis supplied.) Hackett Dissenting Opinion Levin, J. people may to as the claim was consented dants evidence to avoid the have need to exclude such concluding assuming jury that because the and engaged in "aberrant” consensual has given in the instant sexual behavior consent was beyond case, said or at least that cannot be given. doubt that consent was not reasonable Ill procedures in the instant cases violated the rights compulsory defendants’ to confrontation and process pro- and denied them fair trials due cess of law. proffered Hackett, evidence was relevant assumption jury

to rebut white man would not solicit or and inference that a

consent an act of sodomy by a black man.12The decision of the Court Appeals reversing remanding for a new trial should be affirmed. Paquette, the evidence was relevant to rebut assumption

jury married, and inference that a pregnant engage woman does not seek to in casual proffered Also, sexual relations. evidence of statement she was not obtaining sexual satisfaction from her husband is not evidence of sexual conduct and is not rape within the terms of the victim shield law. The evidence of the statement is relevant as tend- ing probable to make it more that activity consented to sexual than it would permitted The Court declares that since the defendant was present complainant past some evidence of a homosexual encounter between the prisoner, and a black to confrontation was not proper, however, denied. It is not to exclude relevant evidence be tending cause other evidence toward the same factual conclusion has admitted, been presenta unless the evidence is excluded as "needless tion of cumulative evidence.” MRE 403. Because of the reasonable standard, tending doubt to rebut an element —non-consent charged rarely case—of a offense will be "needless” or "cumula tive.” Mich Dissenting Opinion Levin, J. such without evidence.13 decision of the Court Appeals should be reversed and the cause re- manded for a new trial. J., took no in the part decision Cavanagh,

Paquette. 13MRE 401.

Case Details

Case Name: People v. Hackett

Court Name: Michigan Supreme Court

Date Published: Feb 1, 1985

Citation: 365 N.W.2d 120

Docket Number: Docket Nos. 67291, 69249. (Calendar Nos. 2, 3)

Court Abbreviation: Mich.