People v. Oliphant

399 v OLIPHANT PEOPLE 6). (Calendar 8, January No. Argued Decided Docket No. 55781. 31, 1976. December Ingham jury in Circuit Oliphant convicted Charles J., gross indecency. Court, Reisig, L. Donald day array challenged on the first of trial the 21, ages persons of 18 and between all because it excluded majority age taken despite change which had in alleged rapes prior to have been three effect. Evidence of over defendant’s was admitted committed the defendant scheme, motive, plan, system intent, objection to show surrounding appear arrange them to make it the circumstances prose- had been The defendant consented. that the Appeals, acquitted. Court of these and cuted for two of (Docket Allen, JJ., J., affirmed No. Quinn, P. and Danhof 14975). appeals. Held: Defendant episodes the four tend in the evidence of 1. The similarities ordinary appear it to make to show a or scheme voluntary inter- sexual which culminated social encounters complainant could not show course had occurred so require that the evidence does not nonconsent. The statute her prove directly element of an essential acts tend of similar people’s case. court, determining inadmissible evidence is A whether 2. outweighed by substantially its value is its because factors, effect, many unfairly prejudicial includ- must balance necessary presenting ing: the evidence and time for [1-3, [2, [4-7, [3, [8-11, [8, ^{[12] [13]} Admissibility, 7, 9, 6, 7, 11, 17-22, similar offenses. 21 Am Jur 47 Am Jur 6, 14, 20, 11, 23] 15, 16, 7] 14, 46 Am Jur 75 Am Jur 21] 17-22, 25, 23-25] 2d, Jury 2d, References 65 Am Jur 26] Criminal Law § prosecution 21 Am 2d, 77 ALR2d 841. 2d, 29 Am Jur 26] Judgments §§ Trial 65 Am Jur 2d, Jur for Points §§ Rape for sexual 2d, 227. 2d, 416, 449. Criminal Law §§ § §§ Evidence § 397. 2d, 417. 91, in Headnotes Rape offense, 92. § 339 et 70 et of evidence 165, seq. seq. 166. . of other potential prove delay; directly tends to how it fact support offered; it would be of which whether a needless evidence; important presentation how of cumulative or trivial sought is; potential proved the for fact to be the confusion of misleading jury; whether the and the fact issues or the can be proved way involving fewer harmful in collateral another effects. testimony by complainant and the 3. The the defendant was agreement happened change in before substantial on what a is, however, the demeanor his threats. There defendant’s key directly contradictory testimony on-the issue of consent. plan appear a to it Evidence of to orchestrate events make that consented, along evidence of the other cir- intercourse, surrounding is cumstances the both relevant and therefore, and, properly material the issue of consent admis- facts, sible under the statute. the trial On these court did not probative concluding abuse the his discretion that value substantially outweighed by poten- the evidence was not the tially effect, prejudicial properly unfair limited the testi- mony by the exclusion of certain matters which he concluded inflammatory probative were too and of little too value. litigated 4. An of ultimate fact in favor of a issue defendant relitigated subsequent cannot one trial in a trial for an arising out offense of the same transaction because collateral estoppel incorporated guarantee in the Fifth Amendment’s against jeopardy. estoppel double Collateral as embodied in the Amendment, however, preclude receipt Fifth does not the into establishing evidence of which is material simply charged crime because it was offered and received in prior totally trial on distinct matter where the defendant was acquitted. challenged jury array 5. day The defendant on the first persons ages trial on the that no basis between the of 18 appeared although objection for the basis had been apparent objection timely for some time. The was not and the jury will not be it. verdict disturbed for Affirmed. Kavanagh ground Chief Justice dissented on the that created, appearance

issue is not whether the of consent was but given. whether in fact consent was Evidence of the defendant’s prior alleged rapes of at other women other times could never complainant’s to the be material issue of this consent. The fact raped tendency prove that one woman was has no permit did not another woman consent. It is anomalous to testify rape witnesses to did defendant them when two of not in the cases and that he did had determined juries acquitted third. The charges in the were never filed judges previous were the cases sole in the the defendant of complaining credibility witnesses. The double those relitigating, any prohibits from jeopardy state clause prior prosecution purpose, in a determined an issue which was party. of the same separate opinion. The in a Court’s Justice Levin dissented exception opinion principled for an basis fails to state a of other general against of evidence crimes. the admission rule rapist is inadmissible is a evidence that the defendant propensity prove to commit offense or a trait of character raped may charged support that he have of an inference raped complainant. on the issue of is it Nor may if the woman did what have occurred nonconsent: it shows complain- consent, to show whether the but it does not tend by force. The evidence that uninfluenced ant consented pattern pursued of consen- in a conventional women relationships not tend to establish that he acted sual social does perceived, plan, if a that its in accordance with a woman, purpose persuade jury, not the or to make was to the prove. inference adverse to the to Since no non-consent difficult intercourse, i.e., complainant results from that she consented to defendant, relationship with the format of her the consensual allowing rebut such an infer- for evidence to there is no basis difficulty The were "orchestrated”. ence even if the format explained obtaining a case can be as a conviction in such jurors composition juries plausibly by the the of and values the subjective bring intrinsically evaluation of the defendant to the give complainant by to the orchestration of events and the as appearance of consent. complaining of the witnesses The admission of acquittal prior prosecutions is had resulted in in the which Jeopardy incorporated in the Double violation of the rule prohibiting relitigation limit this of the same facts. To Clause subsequent relitigation trial for of factual issue in a rule to virtually arising elimi- offense out of the same transaction an prosecu- estoppel in the doctrine of collateral criminal nates arising out of the same in this state because all offenses tions together. must be tried transaction (1974) 242; App 217 NW2d affirmed. Opinion op the Court Materiality—Words Phrases. 1. Evidence — propositions Materiality for the relation between the looks to case;

which the and the issues in the evidence offered what is range litigated controversy "in issue” or within of the mainly light by pleadings read in determined pleading of rules and controlled the substantive law. Sys- Scheme, Plan, 2. Criminal Law —Evidence—Similar or Acts — tem. permits regarding statute which introduction evidence scheme, plan, system committing defendant’s a criminal require act directly does of similar acts that evidence tend prove people’s an essential element of the case to be admissi- (MCL 28.1050). 768.27; ble MSA Evidence—Prejudicial 3. Criminal Law — Effect. court, determining A whether evidence is inadmissible because substantially outweighed by unfairly its value is its prejudicial effect, many including: balance must factors necessary presenting potential time for the evidence and the delay; directly prove for support how it tends the fact in offered; presentation which it is whether it would be a needless evidence; important of cumulative how or trivial the fact sought proved is; potential to be for confusion the issues misleading jury; proved whether the can fact way involving another fewer harmful collateral effects. Rape Consent—Physical 4. — Resistance. prosecution rape, fact nonconsent is in a crucial but a physically rape failure to resist the utmost is if excused (MCL complainant’s will was overcome fear of the defendant 28.788). 750.520;MSA Rape 5. —Consent—Evidence. upon unwilling An act sexual intercourse forced woman is no less because the behavior of the defendant had for the greater portion of his encounter with the been (MCL 28.788). friendly nonthreatening 750.520; MSA Rape 6. —Consent—Evidence. Evidence of a defendant’s orchestrate events make it appear rape for a trial that a woman consented to sexual proof is intercourse not conclusive the woman did not consent, but such evidence is both relevant and to the material issue of consent. Rape 7. —Evidence—Similar Acts. Testimony prosecution rape regarding ain for the similar con- prior of on duct the defendant occasions and in conditions charged was which defendant similar the crime with to those of of consent on issue where it was both and material relevant object became the defend- prove tended way in such a ant’s to orchestrate circumstances subsequent might be viewed as if acts later consensual sexual (MCL 768.27; 28.1050). voluntarily MSA she did not submit Estoppel. Jeopardy 8. Law —Double —Collateral Constitutional litigated in favor of a defendant in one An issue of ultimate fact subsequent relitigated for an trial trial cannot be in a offense arising estoppel collateral same because out of the transaction guarantee against incorporated Amendment’s in the Fifth V). (US Const, jeopardy Am double Estoppel. Jeopardy —Collateral 9. Constitutional Law —Double estoppel in the Fifth Amendment does not Collateral as embodied establishing preclude receipt material prior simply in a crime offered and received trial because was acquitted totally on a (US distinct matter where V). Const, Am Jeopardy and Phrases. 10. Constitutional Law —Double —Words relitigation jeopardy of the same Double arises when there V). (US Const, Am facts from the same transaction Rape Admissibility—Collateral Es- 11. —Evidence—Similar Acts — * toppel. rape, complainants

Testimony, prosecution in a for prosecutions earlier for in which the defendant had been scheme, plan, acquitted, the defendant’s offered show committing system rape, was not inadmissible under the estoppel. doctrine of collateral Competence—Nunc Hearing Pro 12. Criminal Law — Tunc —Due Process. hearing pro competency trial A nunc tunc on to stand ordered right Appeals to due the Court of did not violate defendant’s trial; pro process and to not a nunc of law a fair whether or hearing may satisfy process requirements competency tunc due depends the facts of case. each Array Age Majority Objection. Jury — of Act — 13. Criminal Law — objection persons array to a on the basis that no between An ages although Age appeared 18 on it trial, Majority prior to raised on Act was effective which was trial, day timely the first was not where basis (MCL objection apparent 600.1354, some time had been for 27A.1354, 722.52; 25.244[52]). MSA Dissenting J., Kavanagh, C. Rape Consent—Evidence—Scheme, Plan,

14. Motive —Material- — ity.

Scheme, on, plan, motive, operandi, and so of a modus alleged prior rapes charged rape, committing can never question given of material to the whether consent was in the charged; raped case woman was the fact that one has no tendency prove that another woman did not consent. Jeopardy 15. Criminal Law —Constitutional Law —Double —Coir ESTOPPEL. LATERAL fundamentally totally incongruous It is unfair and with basic permit concepts justice sovereign proof of the to offer speciñc jury defendant committed a crime which a of that sovereign commit; otherwise, person has concluded he did not blight suspicious could never remove himself from the aura guilty speciñc which surround an accusation that he is of a crime. Jeopardy 16. Criminal Law —Constitutional Law —Double —Col- Estoppel. lateral clause, jeopardy The double which includes doctrine of collat- estoppel, prohibits relitigating, eral any the state from purpose, prior prosecution an issue which was determined in a party; of relitigating the same there is no difference between an evidentiary relitigation ultimate fact an fact: of either is prohibited. Dissenting Opinion Levin, J. Admissibility. 17. Criminal Law —Evidence—Similar Acts — tending Evidence to show that a defendant committed an offense charged admissible, by long-estab- in the information is not judicial policy, purpose showing lished for the his criminal disposition propensity or a character trait or to commit that support an offense inference that he committed the offense charged. Admissibility—Preju- 18. Criminal Law —Evidence—Similar Acts — dicial Effect. Admission evidence that a defendant committed an offense not charged tending in the information as to establish an element charged negative subject the offense or to a defense where power evidence bar such court unduly it will outweighed by likelihood value is defendant, preventing objec- against prejudice disputed issues. factual tive determination Rape Acts. 19. —Evidence—Similar rape rapist charged with is a a defendant Evidence that propensity prove trait or to commit character to a inadmissible may charged support inference that he have an offense to evidence, raped complainant; while of a such intercourse if advances propensity sexual force to have use may proven, resisted, indistinguishable not be from what are rape. propensity to Rape Acts. 20. —Evidence—Consent—Similar sexual intercourse if his propensity force to have A to use man’s probative of non-consent of a is not are resisted advances may rape; he complainant it shows rather how trial for in a may not consent. if the woman does what occur react or Relationship Rape —Pattern. 21. —Consent—Social rape complainant relationship in a case with the A social complainant support that the an inference does not defendant appear- there was an intercourse or that to sexual consented relationships consent; pattern a of consensual nor does ance of with a acted in accordance that the defendant tend establish objective plan, plan, there is no basis to if there was a or even prosecution. to hinder effective conclude it was intended Rape Appeal and Error —Evidence. 22. — yield assump- uncritically Supreme to an should not Court implicit in a case that the consen- in the contention tion relationships with women of the defendant’s social sual format duty preserve prosecution; unduly it is the Court’s hindered safeguards designed process all adjudicative to assure and juggernaut against being persons trial overrun a fair perceived just in a a result to be to facilitate felt concern particular case. Estoppel Estoppel —Words and Phrases. 23. —Collateral estoppel’’ fact that when an issue of ultimate means "Collateral judgment, a valid and ñnal once been determined has any litigated parties again between the cannot issue lawsuit. future Jeopardy. Law —Double 24. Constitutional Jeopardy guarantee with Clause is a that the state Double Opinion of the Court power all its shall not resources and be allowed to make repeated alleged attempts offense, convict an individual of an embarrassment, expense thereby subjecting him to and ordeal compelling continuing anxiety him to live in a state of insecurity. Jeopardy 25. Constitutional Law —Double —Similar Acts —Col- Estoppel. lateral fundamentally totally incongruous It is unfair and with our basic concepts justice permit sovereign proof to offer that a specific defendant committed a crime which a of that trial, sovereign, commit; in another has he concluded did not otherwise, person blight could never remove himself from the suspicious aura which surrounds accusation that he is guilty speciñc of a crime. Rape Witnesses—Credibility. 26. —Evidence—Similar Acts — charged rape raped Evidence three women other than the does not tend to show that complainant is a credible witness that the defendant is not.

Frank J. Kelley, Attorney General, Robert A. Derengoski, General, Raymond L. Scodel- Solicitor ler, Prosecuting Attorney, Lawrence J. Emery, Assistant Prosecuting Attorney, and James R. Ramsey, Special Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office Steven L. (by Schwartz, Terence R. Flanagan and Susan J. Smith) for defendant.

Ryan, Defendant, after one mistrial due to jury disagreement, was charges convicted on rape, 750.520; 28.788, forcible MCLA MSA and 28.570(2). gross indecency, 750.338b; MCLA MSA After the convictions were affirmed1 defendant was granted appeal leave to by this Court2 so that we might consider the issues raised. Following a brief facts, recitation of we will discuss the issues 1 (1974). 242; App 52 Mich 217 NW2d 141 (1974). 393 Mich op Court briefed par- were they the order in which ties. State Michigan University stu-

Complainant, dent, window-shopping met defendant while him accompany to a agreed June 1971 and could talk. The they topics where nearby bar race, marijuana. and prejudice included racial place in his car agreed Later she to ride to a they might a band where dance. Defendant drove closed, to one was a second complainant bar which denied admission because complainant where not did have a age, her and a third which band. During period this time defendant also made three at and one a car wash. stops gas at stations her to return Complainant first indicated desire dormitory away her as drove from closed they Defendant, however, insisted on at stopping bar. the in- places. Throughout evening the other passenger side door handle on the side of defend- complainant missing ant’s car was and could leave by rolling down window and only the car the door from the outside. opening point complainant At this diverge. Complainant defendant testified that de- city, fendant drove to an unfamiliar section of the "go the door” instructing they told her to sit on the console near him so girl like boyfriend would look friend. She change demeanor; to a in his testified from being friendly, suddenly became threat- I demanding. She testified: "He said if ening and * * * he gun do what wanted he had a didn’t car he could me knife in the and that take care of the car parked it.” Defendant in a secluded threats, means of further forced com- area and undergarments engage remove her plainant acts, including sexual intercourse. various the Court Complainant that while testified defendant said weapon, he had a never saw one she and that defendant did not strike her or tear her clothes. Complainant testified that after intercourse she replace clothing was allowed to her and was dormitory. way, driven back to her theOn defend- prosecute him, ant told her that she shouldn’t prove rape, tape she could never and that he had a Though sign recorder in the car. she was asked to paper saying prosecute, she would not this never getting occurred. While she was out of car, again prosecute defendant warned her not to get plate said, then "be sure license of the Upon returning dormitory car.” campus police room, to her complainant

were called and University taken to the health center where an examination revealed evidence of recent inter- course. testifying

Defendant, behalf, in his own admit- engaged ted he had in acts of fellatio and inter- complainant, course with the but stated she had consented. Defendant denied that he threatened complainant any way. drop- or forced her in After ping complainant dormitory, off at her Lansing went to the East stated State Police station and engaging that, sex, after he had told unpleasant body she had an angry, odor, that she had become and that he was apprehensive might as to what she do. Defendant police report was in the station when the alleged rape came in. attacking complainant’s

In claim that she did intercourse, not consent the defense counsel emphasized elicited which the fact that complainant was not forced to enter defendant’s attempt car, that she did not to flee from defend- they nightspot nightspot, ant as drove from Mich op the Court torn, her clothes she was not beaten nor that no weapon displayed, she did not was kick or presented bite defendant. The fact night police ques- himself at tion, station on the in argument stating he had had an complainant apprehensive as to and was what she might rape. argued do, was also to be inconsistent with people brought rebuttal,

In on three wit- they raped nesses who testified that had also been many defendant under in circumstances re- spects similar to those in which allegedly raped. testimony The substance their is discussed hereinafter.

I question presented The first is whether the trial allowing court committed in reversible error into testimony concerning evidence the the three al- leged prior rapes prove scheme, the defendant’s plan people system raping complainant. or

offered the of the three witnesses pursuant 768.27; to MCLA MSA 28.1050 which reads: any "In motive, criminal case where the defendant’s

intent, of, the absence part, mistake or accident on his scheme, or the act, plan system defendant’s doing or material, any like acts or other acts of the may motive, defendant which intent, tend to show his of, the absence mistake or part, accident on his or the scheme, plan system act, defendant’s question, may neous with or or doing proved, they contempora- whether are prior subsequent thereto; or notwith- standing proof that such may show or tend to show prior commission of another or subsequent crime the defendant.” upheld Past decisions of this Court have Opinion of the Court challenges statute’s Defendant validity.3 appli- in his case where cability statute the only people contested issue is consent. contend that scheme, a sophisticated the defendant had meet system whereby, should his advances resist- ance, he would commit while orchestrating preclude his the circumstances so as to victims proving from their nonconsent.

A First, we must determine whether the acts of a plan testified to reveal or scheme to ar- range surrounding episodes circumstances in such a way appear as to make it the victim consented. A brief summary testimony of the three witnesses follows.

Witness "A” testified that on the morning of 24, 1970, December she was walking work. approximately When one mile from her destina- tion, stopped defendant his car and offered her a cold, ride. accepted Because it was "A” the ride friendly and there was conversation about reaching weather. Upon Eberhard’s food store lot, destination, parking "A’s” defendant insisted "A” accompany him on a get short errand to some marijuana. Though "A” said she didn’t have time work, to go because she had con- defendant her. The atmosphere vinced was still friendly. driving After short time and further con- versation marijuana, stopped about defendant car, pulled reached across "A” and off the inside door handle the passenger side of the car. crudely Defendant then stated his intention have with "A”. "A” intercourse that de- testified 3 People Kelly, 330, 334; (1971), See NW2d and cited therein. cases 399 op Court anything make him do her not to fendant told angry he would "hurt” and to do as he ordered "A” could not her. her, her, "kill” "shoot” and suddenly had be- the auto after leave demanding, threatening because the come He asked her if removed. been door handle had man and she told him had dated black she yes. ever in the on the floor back of to lie "A” was ordered and underwear off her slacks and take the car to drive. Defendant continued while defendant pants, parked his car, removed then He had intercourse with moved seat. into back clothing replace her her to "A” and then told get During the entire front seat. back into the episode beaten, nor did she "A” not struck though weapon, of harm threats ever see a repeated. were he drive her back to

Defendant stated would Lansing original way, her destination. On countryside, apparently the car still in the while began gas. to walk to a farm Defendant ran out glove alone, com- "A” searched the house. When partment gun, none, and left the car found for get help. a road commission truck and ran to "A” to men from the road commission took hospital police who, turn, took her to a state complaint was filed. for examination. No ever "B” she was a student at Witness testified that University. February Michigan 1, 1971 On State hitchhiking River Avenue to on Grand she was job. in Okemos and look meet a friend up picked male her Defendant and another they would take her car and told her defendant’s friendly go. wanted Conversation was where she subjects marijuana, defendant’s and touched the dating job, Defend- black men. women and white op Court get job also "B” her a ant told that he could he house. would take her to his boss’s store,

After arrived they at a at a stopping Lansing house in unfamiliar an area "B”. house, Once "B” was told that inside the was abruptly Defendant boss’s house. crudely By threats, his intentions. means of stated "B” was forced to dance in the nude. Defendant then made on the and had her lie sofa intercourse time, with her. During this defendant threatened "B” up to shoot so she would with heroin not know her, doing, what she handcuff referred to a shotgun man, in the closet. After second who defendant, had been in the originally car also "B”, had she was given intercourse with back her clothes Lansing. and driven back to East

"B” complaint filed a and the defendant was acquitted on the charge on May 12, 1971. 5, 1971,

Witness "C” testified that on February while a Lansing student at Community College, hitchhiking she was Lansing picked up and was by defendant. There was passenger another male in the car and "C” sat in After the back seat. some conversation, friendly defendant said he had to but, run a quick errand if "C” would ride along with him to apartment, a "chick’s” give he would her a ride the rest of the way to her home. Upon house, at arriving persuaded "C” to come in and meet the "chick.” Once three had left the apartment, car and entered the it became apparent there was no "chick” there. Defend- ant then told "C” brought that he had her there to intercourse have and that if she only stripped and danced would naked she be allowed to leave. "[y]ou’ve got He told her five off minutes to take your clothes and dance it’s all over.” op the Court on the struck fore- "C” leave and tried to to kick tried defend- "C” by defendant’s fist. head Defendant struggle. then and there was a ant he had and said killed "C” with death threatened sup- was called passenger others. The male he had killed statement defendant’s port up picking "good liked said he Defendant others. having intercourse with looking white chicks” and would be was afraid she "C” testified she them. and her clothes danced killed so she took off and Soon thereafter defend- had ordered. as defendant had the sofa and inter- pushed "C” down on ant suggested go later "C” course with her. Defendant to drive her there. He police and offered card and asked college "C” his identification gave his and address. Defendant her to remember name her home to within two blocks then took "C” dropped her off. and, 28, 1971, on complaint October "C” filed a charge rape. acquitted the defendant was alleged rapes all out that four people point period, and all four during a five-month occurred All four incidents college-age involved women. meeting friendly public with a conver- began discussed, either In each case race was sation. racial dating preju- context of interracial with all four women also dice. conversations marijuana. touched on "A”, "B” and "C” entered defendant’s

Witnesses entered his car immediately, car meeting. four their initial All women after soon voluntarily into car and rode defendant’s got go particular to a expecting time him the expected made from place but a deviation was route, upon likely one or another not excuse All four on the part arouse fear women. to them area then driven unfamiliar were place. intercourse took where op Opinion the Court Complainant riding in a and were car "C” with engaged light seemingly friendly man, conver- finding upon when, in an sation themselves unfa- threatening area, miliar demanding. the man became and "A” and "B” went Witnesses with a seemingly friendly "errand” an man apartment, whereupon the unfamiliar man be- threatening demanding. All came four and were they told to submit or would be harmed with a weapon though weapon pro- no some kind was they duced. All four testified submitted to crudely spoken defendant’s sudden and demands they possibly out of fear would beaten and attempted they Only physi- killed if didn’t. "C” cally fight back in face of defendant’s threats. struggle "C”, Aside from the short with the de- rip any fendant did not beat or the clothes of given home, the women. Three were a ride being "A” witness driven home when she escaped from the defendant’s car. apparent opportu-

In all of the there cases were nities for the flee women to from defendant. The occurred, women testified that when these chances they did not feel need to flee because defend- friendly. frightening change ant was After the demeanor, defendant’s the women were not al- escape. lowed a chance to go Defendant told "C” witness that she should police and furnished her with his name and college address and identification card. Defendant going police told to the would be prove anything futile, since she couldn’t and he tape had a complainant recorder in the car. He then told get

to be sure and his license number. police alleging Both women went to the station rape against they apparently a man knew. Knowl- edge college name, address, of defendant’s identifi- the Court numbers, along with other cation car license apparent of bruises lack facts such as the to lessen tend would opportunities escape told their they story when credibility women’s rape. and the Court of trial court agree

We "A”, "B”, and "C” Appeals that raped that defendant tending to show goes beyond in many similarities all young other women. The or scheme plan a four cases tend to show surrounding rape of orchestrate the events not noncon- show so that she could thereby escape pun- could sent and the defendant appear that an plan made ishment. Defendant’s in which culminated ordinary social encounter the denoue- gone sour at voluntary simply sex had un- complainant’s reference ment due to his odor; bitter woman seek- a vain and pleasant body man. revenge against an innocent ing B defendant’s must next determine whether We scheme, doing in the act was plan system or material capable being proved thus under face, 768.27; 28.1050. MSA On its stat- MCLA motive, of other acts when proof only ute allows accident, intent, of mistake or or absence the act are mate- scheme, doing in plan system rial. Here, fact proved. nonconsent is the to be a tending of evidence to show logical relevancy appear to make it as if consent plan or scheme however, plain. Materiality, is given concept than relevancy. narrower relevancy and material- "In the courtroom terms in interchangeably, materiality ity used but are often precise meaning looks to the relation between its more Opinion of the Court propositions evidence is for which the offered and the issues in the If evidence is offered prove case. proposition proba- which is not a matter issue or issue, tive of a matter to be immaterial. As to the evidence is properly said issue’, is, is 'in what within range litigated controversy, we look mainly to the pleadings, light read the rules of pleading and controlled the substantive law.” Mc- (2d ed), Cormick on Evidence 185. § probative Under this definition evidence of a mat- ter "in issue” is material. Evidence part scheme on the of defendant to orchestrate proof events to make course, is, of nonconsent difficult of the contested issue of noncon- sent. required

We note that under the statute it directly that prove the evidence of similar acts tend to people’s an essential element of the case. This is evident from the fact that while "motive” statute, is enumerated in the motive is never an proved essential element to a criminal case. "Identity” always which is an essential element in prosecution a criminal is not mentioned in the clearly may proved by statute but be the use of People Kelly, similar acts evidence. v 386 Mich (1971). 330; 192 NW2d 494 similar Here the acts prove proposition plan were offered to or —the scheme, which was of a matter issue testimony —nonconsent. The is material within meaning of the statute.4 may Relevant and material evidence still be 4 testimony young of the four women also included facts which pattern tended to show a in the actual sexual contact between defendant and the women. This evidence was irrelevant and immate scheme, establishing system rial to or to orchestrate events so as to indicate consent. Admission of this reversible error, however, inflammatory unduly prejudi it because was not or testimony merely commonplace cial. The reflected "one man’s rather style engaging p in sex”. Defendant’s brief at 27. 490 472 399 Mich op Court probative value is if the from a trial excluded substantially unfairly prejudicial outweighed by its admissability determining the court effect.5 In including: many the time factors must balance necessary presenting the evidence and the for prove directly potential delay; it tends to how support offered; whether is the fact in of which presentation of cumulative it would be a needless evidence; sought important trivial the fact or how proved potential is; for confusion of the to be misleading jury; and whether the fact or issues sought proved way proved in another to be can be involving collateral effects. fewer harmful established, nonconsent, is crucial fact by Rape defined the statute in a case. applicable intercourse with a to this case6 as against will. Proof her woman penetration, force slight, is sufficient. Often the however problem proving It nonconsent. has more serious showing of "resistance sometimes been said that to the utmost” necessary the woman is People Geddes, 258; 3 NW2d convict. (1942). struggle resulting physical 266 Absent a lacerations, or such resistance is often bruises prove. It difficult to is now well settled this physically state, however, that failure to resist to 5 (6th ed), 4:6, Ev, p on Evidence 392. See also FR § Jones (3d (effective 1, 1975), ed), Wigmore, seq., July and 2 Evidence 300 et § (Chadbourn rev), Wigmore, and 6 Evidence 1904. § 266, 3, 750.520; repealed by MSA 28.788 was 1974 PA § MCLA 1, provides: effective November 1974. Section of 1974 PA 266 pending rights existing, proceedings "All and all and liabilities acquired, amendatory incurred at the time this act effect are takes according may when saved and be consummated to the law force amendatory they are commenced. This act shall not be construed begun any prosecution pending before the effective date affect this amendatory act.” 1, on which this action is based June The incident occurred on September information was filed 1971. For the current and the provisions conduct, dealing with criminal sexual see MCLA 750.520a 28.788(1) seq.; seq. MSA et et People v 491 op the Court

the utmost is excused if complainant’s will was overcome fear of defendant. People v Myers, 100; 306 Mich (1943); 10 NW2d 323 Strang People, v Palmer, v (1871); 24 1 512; Mich App (1973); People v NW2d Dockery, (1969). 201; App NW2d 726

In the complainant case at bar the and defend- ant are in agreement substantial on what hap- pened prior to defendant’s alleged change in de- meanor and his threats. On the key issue of con- sent there directly contradictory testimony; thus the trier of fact must look to the attendant circum- stances and the parties’ prior behavior and subse- quent to the act of intercourse. It then becomes material to know whether defendant orchestrated those give appearance circumstances consent and to proof make of nonconsent difficult. Relations at one moment casual and friendly could, next, in the turn ugly threatening, an act of intercourse upon forced an unwilling woman would no less because the behavior greater defendant had for the portion of the spent together time been friendly and nonthreat- ening.

Certainly, the fact that an individual commits rape at one time has no bearing on whether an- other woman consented to intercourse at a later States, (CA Lovely United time. 169 F2d 386 1948). Here, however, the people did not offer prior prove prior acts to rapes, or that the defend- ant is a bad man with criminal propensities. The people prior scheme, offered acts show the plan system employed by in a manner and under raping circumstances gave which appearance of con- sent should he meet with resistance.

It is true that even if to orchestrate 472 399 op Court the woman con- appear to events make proof shown, not conclusive sented is this Evidence such a consent.7 the woman did not evidence the other however, with plan, along intercourse, both surrounding circumstances issue of consent and to the relevant and material 768.27; under MCLA therefore admissible properly MSA 28.1050. interpreted this

This, recently statute was we where held People Kelly, supra, Court v admitting evidence of trial court not err did of defendant which subsequent acts prior scheme, or even plan system, a tended to show prove prior crimes such also tended where acts by the defendant. allegedly case, the defendant entered "In the instant room, put a gunpoint her at forced victim’s motel head, raped then her twice.

pillow case her over perpetrat- while rapist in this case wore no clothes allegedly with ing then fled the crime. tape her recorder. all of the victim’s cash and strikingly a testimony of Miss Coleman reveals "The Again, allegedly the defendant entered similar crime. Miss room, gunpoint her at Coleman’s motel forced head, her put three The defendant pillow raped her and then a case over during rape. rapist times. The wore no clothes cash, watch, allegedly then fled with a Clearly subsequent defend- and a check. ant tends in this act scheme, plan system part or on his show a performing these acts. testify also forced on cross- defendant was

"The in a his altercation motel room examination about boyfriend. there was no lady and her While incident, are to tend in that facts sufficient involved to scheme, part plan system on a common or show creature, fair or at least in a few minutes ravished this 7"[H]e her, not, by timely compliance, if have ravished she had would Wild, 7, Fielding, III, quoted prevented Ch him.” Jonathan Book (CA 1974). 5, Wainwright, F2d v McDonald Opinion of the Court latitude of defendant within the cross-examina- tion.” at 334-335. (a crime)

Kelly specific robbery intent involved rape, well as acts as and the evidence of other similar plan system scheme, tended to show identity. material to the issues intent and In the prior scheme, bar, case at similar show a acts system to the material issue of consent. The equally "strikingly acts offered here are at least jurisdictions Kelly. similar” as those in Other have application reached results 768.27; to our of similar MCLA Kelly in case, MSA 28.1050 in and this either under a similar statute or the common law.8 judge recognized

The trial in this case that the language permissive statute is in cast and under- probative against possible took to value balance prejudice to the defendant. There was extensive argument point by parties on this the out of hearing jury. study, judge of the After the deter- ought jury mined that the to be able to hear the testimony properly witnesses, of the three limited by the exclusion of certain matters which the judge inflammatory concluded were too and of too probative little value. Prior to each testi- witness’s mony charge, jury judge and in his the instructed jury purpose the as to the limited for which the being they evidence was offered and for which it.9 were to consider 8 (1973). Downing, 456; Finley, State 109 Ariz 511 P2d 638 State v 327; (1959), 85 Ariz 338 P2d 790 which noted the fact that in each

alleged rape through personality change the defendant went from a "frightening” State, "normal” to a (Fla, demeanor. Dean v 277 2d So 13 1973). 1959). State, (Fla, Williams v 110 So 2d 654 State v Gonzales, (1975). 159; Hampton, 217 Kan 535 P2d 988 State v 215 907; (1974). complied Kan 529 P2d 127 See also cases 77 ALR2d in 841. "A”, "B”, jury testimony Before the heard the of witnesses and "C”, court instructed the the as follows: prosecution going "The is to call some additional witnesses. you testimony "You alone as and the trier of facts will evaluate the the Court of the do, testimony that as Concluding, we statute, the we with compliance "material” in the trial court’s upset stage to decline at this of value and to the balance judgment as summarized above The facts effect.10 prejudicial However, understanding that you is the court’s hear. it are about to part may testimony other acts on the of involve the the defendant. these witnesses of .plan the defendant this the issue of the defendant’s you testimony by testimony instruction with guilty of these other testimony relevant his alleged rape system rape, testimony within for that question. much some properly dent scheme reasonably act define them.” and of itself mean that every day, ered “In "I would also advise "You and “Evidence of “However, ^[10] be admissible part charged "The alleged case, must find part criminal or to common similarities between weight order to consider the portion in order system doing exception. The system and consider of However, of separate or was when will be admitted show discretion common close the defendant any scheme, you again in order to be admissible under material acts in this these young substantially is [complainant] on regard that of show that that alleged you the the criminal character common scheme relation alone are more credit bear are the fact the and distinct acts this evidence addition determining acts should not witnesses, that evaluate the there was in in the first of the matter, ladies in so you likely upon jury determination, however, you prior the defendant showing closely system which is not admissible that or trial testimony does not will solely the same motive, alleged scheme the issues of the charge dealing but rather similar defendant system in just June the defendant sole testimony you give it. connected with court, be material have or of other testimony the defendant’s instance a matter as following incidents related here does fact a plan. because act in you may judges credibility in and of themselves necessarily that evidence acts to be admissible as of committed the act and this court will intent, raped 1971. the above ["A”], pattern this case as alleged doing common question at guilty you in this two accused, [complainant]. the had relations with this or [complainant] in turn of the witnesses.” of will believe and how the crime of whether find that there make paragraphs: his and in time motive or intent or ["B”], offenses defendant quoted cautionary trial credibility the case common here, might scheme, plan or alleged other crimes of I have resting largely alleged but rather this must have a consider and of similar and in order not reverse charged charged or bear show be consid- you may indepen- Normal, scheme, may plan acts of this this act is, to the not in ["C”], upon were that acts any will Mr. or as Opinion of the Court exhibit such similarities as of a consent, of on plan scheme. The dearth evidence contradictory aside from the com- defendant, plainant make evidence as to the particularly circumstances the incident impor- tant this case. We are unmindful danger of prejudicing this of evidence type against facts, jury On these the defendant. how- ever, there is no to conclude that basis trial care, judge, great who addressed the issue with abused in concluding his discretion that the proba- tive outweighed value was not substantially unfair potentially prejudicial effect.

The fact that the instant returned a verdict of guilty, prior jury while a which had not been presented evidence of scheme was verdict, unable to prove reach a does not evidence unduly prejudicial, but suggests no more than that instant jury may have found probative.

II presented second issue by defendant stems from the fact the defendant already had been acquitted of the rapes testified witnesses "B” and "C”. Defendant contends allowing testi- mony these alleged rapes two constituted re- error versible as a violation of the doctrine estoppel collateral as embodied in defendant’s Fifth right Amendment against double jeopardy.

The keystone of defendant’s argument is Ashe v Swenson, 397 US 436; 25 L 469; Ed 2d 90 S Ct (1970). Ashe involved a conviction for the there is a clear unless abuse discretion. Whether evidence which otherwise admissible should be excluded for also rests remoteness largely DePauw, in the discretion trial court.” State v 297, (1955). 95-96; Minn 74 NW2d 472 op Court the game robbery participant after the in a card of a acquitted previously of rob- had been defendant game. bing players in the same another of the jury Supreme had first deter- the Court held prove to failed defendant had mined that the state the trial first robbers had been one of the was, therefore, prove trying precluded to the from trial which was identical in the same fact in second except aspects for the named victim. Ashe all episode relitiga- single and the involved a criminal it had been decided in after tion of the same fact the first trial. favor in defendant’s jury bar, had decide In at the the case raped complainant 1, on June whether defendant testified which incidents 1971. The two other part acquittals the same same resulted in were they episode,11 the turn on nor did criminal prior in each of the An of fact crucial fact. issue "B” "C” consented the trials was whether submitted result the as the threat intercourse or ques- from the force. These are distinct of tion of whether issues complainant consented inter- the of the threat of as result course or submitted Assuming only rational for the force. basis prior acquittals consent determination favor- was a way in no defendant,12 this could bar able 1, allegedly raped February "C” "B” on 1971 and was was 1971, 5, complainant raped allegedly raped February while was on on 1, June 1971. "C”, rape prior trials of "B” and defendant In the In consensual. had intercourse but contended was admitted he following stipulation: bar, people signed the the case at OF THE RECORD IN SUPPLEMENT STIPULATION parties hereby agreed stipulated by the record It is following supplemented information: this case be 22543, Ingham County Court case Number Charles That Circuit therein, acquitted charge by jury Oliphant, rape was 12, 750.520; 1971; May MCLA [MSA 28.788] being [B]. County Ingham Charles Circuit Court case That Number therein, acquitted by Oliphant, the defendant Oliphant 497 v Opinion the of Court

people proving part from nonconsent on the of complainant. us extend Ashe

Defendant would have to bar the use of simply evidence because it had dealing been offered once before in a trial with an entirely separate event which resulted in acquit- Wingate v Wainwright, tal. Defendant cites 464 (CA 1972), Cross, and Blackburn v F2d 209 510 (CA 5, 1975), F2d 1014 of support position. in his foreign But those of decisions a Federal Circuit Court of Appeals expansion involved an Ashe holding13 expansion this Court is not —an Wingate bound to adopt. court stated: 750.520; 28, 1971; complainant MCLA [MSA 28.788] October the being [C]. Oliphant In judicially each of the above cases Charles admitted that place complainant; sexual intercourse took between he and the [sic] voluntarily complain- but asserted that such act occurred with the ant’s consent. In each of the above cases claimed that the sexual Oliphant intercourse with Charles as of occurred the result the threat of force. complainants in That of they each the above cases the stated that age were over the claim. of 16 Charles did not contest such An issue of fact in each case for the resolve was whether or voluntary not the sexual intercourse was or the result of threat of force. foregoing stipulation approved as to form and content. 1972) Wingate (CA5, Wainwright, "In 464 F2d 209 this Circuit expanded signiñcantly holding. Wingate the Ashe In a federal habeas corpus petitioner robbery attacked his conviction for a small trial, tending store. At his Wingate the state introduced evidence to show that robberies; had committed four additional he had been tried acquitted closing for and of two of these robberies. In his remarks heavy prosecutor there was reliance on the evidence of additional robberies. merely subsequent court "This held that Ashe does not a bar state prosecution, depends upon maintenance which a successful relitigation to previously adversely of a fact issue which had been settled acquittal. Rather, jeopardy the state an earlier the double clause, prohibits Ashe, estoppel which includes doctrine collateral under relitigating, any purpose, the state from for an issue which prior prosecution Hence, party. in was determined of the same relitigating there evidentiary no diiference between fact an ultimate fact; relitigation prohibited.” of either is Blackburn v added). Cross, (emphasis at 510 F2d op the Court in his Brennan concur- Mr. "Although Justice both dissent Burger his discuss rence and the 'same transaction’ Justice Chief a standard double test as holding in Ashe jeopardy do not believe we speaks the Court Instead rests on that foundation. relitigation any future lawsuit prohibiting terms of actually parties issues determined between the same (Emphasis previous F2d at 213. trial.” 464 at original.) in Ashe does not opinion Although majority expression "same trans- meaning discuss the Ashe action”, presented of a the facts nevertheless We read Ashe in the "same issue. transaction” it was as facts on which based context of the litigated in ultimate fact holding that an issue of be of in one trial cannot reliti- favor subsequent in a trial for gated by government the arising out of the same transaction.14 offense in the Fifth estoppel as embodied Collateral of receipt not the testi preclude Amendment does establishing a be simply crime mony material prior it received in a trial cause was offered and a matter where defendant was totally on distinct noted, Ashe does not acquitted. As the court below expressed as the law principle vitiate the as above Johnston, 328 Mich 213; People v this in of state (1950).15 v 52 People Oliphant, 43 NW2d 334 242; App 141 217 NW2d (1974). concept jeopardy held the of double does This Court has White, 245; People the transaction” test. v include 212 the prior "same adoption (1973). However, require does not the of this NW2d Offering Wingate-Blackburn interpretation of evidence of a Ashe. crime, acquitted, jury to a has been em for which defendant here, asking inquiry, the on as does not involve

barked a distinct prior jury It not for the crime. does second to convict defendant contradicting jury jury, the first since the first involve the second crime, only the not commit not find that defendant did did people beyond proved that had a doubt. had not he reasonable CJS, general p subject rule on is in 22 "The stated language: following " tending 'Similarly, of other evidence to show the commission Óliphant op tUe Court here not offered in an effort evidence was of "B” rápe

convict defendant witness or "C”, scheme, plan but rather to show thé sys- or above,16 tem As noted employed by the defendant. scheme, of proof plan system does such negative integrity consent. The. conclusively acquittals defendant’s théke cases not threat- ened. Reference will had to the words of be Constitution, "nor any pérson subject shall put the same offense to be twice jeopardy life added). or limb”17 held (emphasis Ashe collat- eral estoppel incorporated the Fifth guarantee Amendment’s double jeopardy. against Double jeopardy arises when there is relitigation same facts from the same transaction. There no in the jeopardy double instant case.

In the at people using case bar the were not prior cases as dry sharpen runs their case. The motive, method, if system, offenses is admissible tends show conduct, course including or scheme to commit series crimes trial, apparently one or the intimate and confidential hand, relations between informer and On the accused. other prove bribery evidence of other offenses which does not tend to charge should be excluded. " acquitted 'The fact that accused was tried and of the other offense prosecution not does bar the introduction of evidence thereof in a for bribery bribe, general plan system where such evidence shows the of the trial, or illustrates accused’s acts in the transaction on light throws on the later evidence.’ suggested "In judicata the instant case it is that the doctrine of res applied preclude testimony should be and received in the the of introduction offered prosecution conspiracy. language for of the paragraph quotation point directly second of the above from CJS is against charged on this issue. Defendant is not on trial for offense the prior question whether, presently in the him case. The at issue is as charged by prosecution, accepted the he a bribe in of the violation tending Testimony legiti- statute on mately excluded prior charged.” the which information is based. offense, thereof, may to establish such or some not element ground solely the on that it was offered received the bearing guilt case as on defendant’s there offense Johnston, People v 328 Mich at 226-227. 16 7, accompanying supra. See text fn 17 Const, US V.Am 472 Court the of the prejudice de- not intended testimony was there jury, the were of eyes fendant in the for which purposes the the specific instructions on uses. permissible its We testimony offered and was the witnesses that of two hold the of the doctrine collateral not under inadmissible Fifth in the Amendment estoppel embodied as jeopardy provisions. double

III the is that trial argument Defendant’s third a formal competency court’s failure to conduct 767.27a; MCLA hearing 28.966(11) required MSA by as nunc that the error and was reversible tunc pro hearing by ordered Court competency Appeals18 permissible under statute rights. constitutional and is a denial of defendant’s by our The case at bar is controlled decision Lucas, 522; People v 227 NW2d 763 (1975), facts. Here defend- which involved similar evidentiary hearing for an at ant was remanded the trial level. After submission evi- court dence, compe- the court found defendant had been Following time trial. tent trial at stand Lucas, point. we error on this find no reversible

IV next that the trial court’s Defendant contends part Appeals April an order in The Court of entered follows: as be, the motion remand and the same "It is further ordered granted. hereby, The cause remanded to the Circuit Court for the is County Ingham purpose making the sole a record of all facts for surrounding the commitment of Charles E. Oli- and circumstances Psychiatric phant subsequent Center for Evaluation and the Forensic proceedings suggested by taken the court It is thereon. expeditiously hearing purpose be held and that for by peremptory motion raised on reversal be treated as issue issue parties appeal briefed to be both and considered when the case is submitted.” court People v Opinion of the Court array deprived challenge jury

denial his right impartial jury him his to an drawn from a community. cross claim fair section of the This on persons the fact no between the ages based 18 and on the appeared array. Defendant Age of Majority Act, contends since 25.244(52), 722.52; MCLA prior MSA effective trial, his many 21-year-olds 18- to and that had were, therefore, registered eligible to vote and for 600.1306; MCLA jury service under MSA 27A.1306, 21-year-olds the fact no 18- to were picked available to be which tried jury his constitutionally improper. case was We note that defendant first raised this chal- lenge on first day his second trial when the objection apparent basis for the had been for some Thus, time. the objection, exhaustively discussed court, and denied on the merits trial ought rejected to have been as not timely under MCLA 600.1354; MSA 27A.1354. We decline to disturb the 600.1354; jury verdict this point. MCLA MSA 27A.1354.

V that, Defendant’s final contention is because he was retried after one had agree upon failed verdict, he was placed twice jeopardy of his rights. objection violation constitutional This court, was not raised in the trial the Court of Appeals, application appeal. for leave to While this Court does have power to review error which has not been properly preserved, such power is be exercised in only compelling circum- miscarriage justice. stances to avert a (1968). Farmer, 198; 156 NW2d 504 nothing There is of this justify the exercise 472 Mich 502 399 Kavanagh, Dissenting C. J. case reveals facts

power where record this the of United States v authority clearly within the (9 Wheat) Perez, (1824), 579; 6 L Ed 165 22 US Duncan, 650; 130 385 People v NW2d 373 (1964). to consider this decline Accordingly we properly presented. issue as not Affirmed. Fitzgerald,

Williams, Lindemer, Coleman, Ryan, JJ., J. concurred with reversal). (for

Kavanagh, Admitting the C. the asserted "victims” of de- of other fendant was error. reversible only

The matter in issue this case was or not the to the prosecutrix whether consented the defendant. admitted sexual intercourse opinion finds that of de- majority evidence past fendant’s sexual conduct "material know those circum- whether orchestrated of give appearance stances consent and proof make of nonconsent difficult”. point.

This misses appearance The issue is not whether in fact consent created, whether consent was but prior of the defendant’s al- given. was Evidence times leged at other could rapes of other women complain- never be to the issue this material ant’s consent. Kelly, v 330;

People 192 NW2d (1971), will upon heavily by relied majority, for which is cited. support theory Kelly, was was identity, where the issue effect scheme, modus operandi could hold Scheme, proof plan, of that issue. material motive, operandi, alleged modus etc. of defendant’s' Kavanagh, Dissenting Opinion by C. J. rapes

prior question can never be material to the given. of whether or not consent Supreme circumstance, aIn similar Court of — Beaulieu, —; Rhode Island in State v RI (1976), appropriately A2d held that circúmstances, present "under suspect testi- mony should have been omitted from the record. We that, already pertaining have charge stated to the rape, solitary prosecutrix issue herein is whether having consented. The defendant performed admits to and, thus, the act questions as described guilty knowledge or intent are rendered irrelevant. As the premise court, framed another fact that '[t]he * * * raped one woman was has no tendency prove that another woman did not consent.’ Lovely v United (CA 1948).” States, 386, 4, 169 F2d 390 Three women testified at this trial that defend- raped past. ant had them in the charges In the witnesses, case of one of no these were ever cases, filed. In the other two the defend- acquitted rape. ant was tried and of It is anomalous that these witnesses should be permitted testify rape that them, defendant did jury when a had determined that he did not. Appeals recently As the United States Court of Wingate Wainwright, observed 209, 464 F2d (CA 1972): 5, 215 "It fundamentally unfair totally incongruous and with our concepts justice basic of permit the sover- eign proof to offer specific a defendant committed a jury crime which a sovereign of that has concluded he did person not commit. Otherwise a could never remove blight from himself suspicious and aura which an surround accusation guilty specific he is of a crime”. 472 Dissenting Opinion J. judge instructed

The trial "You judges credibility you sole of alone are the * * * testimony by witnesses this these acquitted juries that That is not the case. previous cases were in the "the * * * credibility judges these wit- sole nesses”. jeopardy clause, which

"[T]he includes double estoppel under doctrine of collateral state Ashe1 relitigating, pur prohibits any from prior pose, prosecution an was determined issue which party. Hence, of the same there is no relitigating ultimate fact or difference between an evidentiary relitigation prohib either is fact; (CA Cross, 510 F2d ited.” Blackburn v 5, 1975).2 a fair was denied trial. I Defendant reverse. would

Levin, J., C. J. concurred with Kavanagh, (dissenting). Levin, Charles was con rape gross indecency.2 victed of Oliphant’s complainant’s accounts of the meeting of their and other events circumstances agreed. preceding generally the sexual acts issue was whether she consented to the factual sexual acts.

Postulating that it would assist permitted deciding judge consent, the issue of the over testify, objection, that, other three within women charged, of a few months the incident raped Oliphant They had them. had too voluntar- relationship ily him entered into a brief during they accepted which, an ride automobile 1 Swenson, (1970). 436; 1189; v Ashe 397 US 90 S Ct 25 L Ed 2d 469 2 also, People Gray, 1, (1974). 3; v See 222 NW2d 515 750.520; 28.788. MCLA MSA 28.570(2). 750.338b; MSA MCLA Dissenting place they

asserted, he detoured to a where were participate forced to in sexual acts. agree although

All that evidence that the de- may fendant has committed other crimes tend to support predisposed an inference that he is particular and, commit crime or a crime therefore, may support is relevant tend to because charged further inference that he committed the long-established judicial policy offense, it is tending evidence show the defendant com- charged mitted an offense not in the information is purpose showing not admissible for the of his disposition propen- criminal sity or a character trait or support to commit that offense to an inference charged that he committed the offense.3 Litigation scope exceptions concerns the of al- lowing tending admission of evidence to establish charged negative an element of the offense or to subject power defense, to the of the court to bar probative such evidence where the value is out- weighed by unduly the likelihood that it will prejudice jury against prevent- defendant, ing objective disputed determination of the factual issues.

Seeing, judge with the trial and the Court of Appeals, similarity descriptions in the women’s surrounding acts, the events the sexual this ground Court holds the evidence admissible on the part "[e]vidence of a or scheme on the proof to orchestrate events to make probative is, course, nonconsent difficult nonconsent,” contested issue of and declares that judgment it will not substitute its for that of the judge balancing trial in the value prejudicial effect. (2d McCormick, ed), 190, p See Evidence § 447. See also FR Ev

404. 399 Levin, Dissenting Opinion J. incorporates holding a number The Court’s df plan pattern evidences a conclusions: that scheme; or purpose scheme perceived proof difficult; of non-consent is to make pattern, plan implicitly, that, proof scheme makes proba- difficult; that it non-consent tive on consented. whether the opinion of not consider the Court does alternative analyses for all its or state reasons conclusions. apprehension, judg-

I share the reflected opinions judge ment of the trial of the Appeals Oliphant Court, that Court of sexually exploits and this join

women. I am unable to opinion the principled it Court’s because fails to state a exception general basis for an to the against rule the admission of other crimes evi- dence. Oliphant rapist is a evidence that is inad- prove propensity

missible to a character trait or charged support commit the offense to an infer- raped may complainant. ence that he have probative propensity evidence, Such while of a use force to have sexual if intercourse advances indistinguishable may resisted, are from what proven, propensity rape. not be propensity A man’s to use force is not may non-consent; shows rather how he react may or what occur if the woman does not consent. abducted, Unless a woman is the social relation- ship appear between the man and woman will generally consensual. Because sexual relations are private, and occur in solicited whenever the issue prosecution in a sexual offense case is consent the largely dependent will be on the complainant, due to the nature of the offense and not to "orchestration”. Dissenting pursued

The evidence that women in a pattern social conventional of consensual relation- ships that does not to he acted tend establish plan plan. per- a is accordance with a ceived, Even if objective concluding for there no basis is Oliphant’s purpose adopting plan that was prosecution by making to hinder effective non-con- prove difficult than to sent to rather facilitate transporting meeting place and them a women to they purposes. where for sexual could solicited Assuming, pattern arguendo, that evidence was prosecutor purpose, admissible for this had the establishing burden of that defendant’s conduct pursuant plan, habit, a was to not custom purpose plan any jury persua- that the was such persuasion. sion, not woman Unless is there an objective allegations apart rape, basis, from concluding for had the defendant a purpose, primary purpose, jury its was persuasion, distinguishing is reason there no allegations this case from other cases where rapes against other have been made a defendant. Surely, allegations rapes may of other not be proven simply relationship because social whs consensual and the act of intercourse occurred in private; tendency that, fear, but I is the opinion. Court’s if

Even the consensual format of the relation- ship give "orchestrated”, not could rise to appearance an inference or of consent. It would partici- not be reasonable infer from a woman’s pation relationship with a man in a social agreement accompany him in an automobile that she consented to have sexual intercourse with him. Since no inference adverse to the

complaili- aiit from results the consensual format of her relationship Oliphant, there no basis for Opinion by Dissenting inference even to rebut such allowing evidence if the orchestrated. format were prosecutor would

It understandable following the earlier a frustration have sense of Oliphant’s acquittal trials which resulted mistrial in the and C and a raping B witnesses agree on a failed instant case when verdict. however, preserve duty,

It is the Court’s safeguards designed to arid adjudicative process over- against being a fair trial persons assure all concern facilitate juggernaut run felt particular case. just result perceived to be yield to uncritically Court should the the contention that implicit in assumptions social relation- Oliphant’s format of consensual ships prosecution. hindered unduly with women advan- know some men take sexual

Jurors that merely a social tage of women and that because are in relationship is and sexual acts consensual the not mean that woman consented. private does the that heard the evidence in Although jury first verdict, a com- agree this could not on the case prosecutor despite and the plainant succeeded — aspects the and consensual so-called orchestration convincing the initial some relationship of —in the did consent.4 jurors complainant not consent, deci- the in a case is When issue turn evaluations of credibil- jurors’ sion will on the only appraisal not their ity depend which will on the competing the and coherence of plausibility of evidence, circumstantial on but and the testimony tending inculpate Oliphant. The There were circumstances side, improbability missing passenger handle on the and the door virgin, according complainant, a would medical only agree Oliphant, met a to have intercourse with whom she had earlier, although her she with had had intercourse few hours engaged boyfriend acts. whom she had oral sexual with Oliphant People v Dissenting evaluation: What intrinsically subjective kind defendant; a man what kind of woman of complainant? prosecutor’s a difficulty obtaining convic- composi- tion have been attributable may way tion biases and juries, thinking their tend to be people. composed about life and Juries values, older persons persons with middle-class woman likely regard dismay a who meets man a under the circumstances described short acquaintance and on accompa- him nies on an automobile ride. Additional factors may regarding have notions juror been mores college white women who students date explain, plausi- black men. Middle-class values as bly orchestration, as the frustration of the earlier efforts to Oliphant. convict

If I am venturing correct the difficulty in prosecuting Oliphant was not successfully orches- values, tration may but have been middle-class prosecutor’s objectives might by grant- be achieved seeks, ing Oliphant the relief he aby retrial composed representative group of more of citi- zens, including peers and the com- plainant, young black and white men and women.5

A jury generation gap without a might be less who, inclined to view with disfavor woman described, acquaint- circumstances short accompanies ance man on an automobile jour- ney. safety Public not require does further disman- tling long-established the sound rule evidence, against of propensity recently use ex- Legislature tended the by complainants prosecutions.6 Nor is there further to under- need 5 Oliphant assigned jury panel as error the failure to include in the ages persons the between of 18 and 21. 28.788(1) seq.; etseq. 6 MCLA 750.520a et MSA 472 510 titee by Dissenting against duplicitous rule indirection, the mine, informations.7 princi- attempted to articulate

The Court has justifying pled of testi- admission distinction only rapes. mony alleging has succeeded It other unprecedented exception creating in this hopefully, confined to circum- be which, will state present combination of fac- where here stances acquaintance, difference be- racial tors—casual complainant, and complainant and tween the difference between cultural put jury may comprising persons have — light jurors. in a bad exception not so will be that the

I am concerned general exceptions history to the 9The limited.8 barring evidence is crimes of other rule admission particular reassuring; case an in a stated not exception once mechanically applied and to tends to be life of its own.8 take on a re-litigation permits of fac-

Further, the Court people against already resolved tual issues prosecutions the Double violation earlier Jeopardy Clause. 7 (2d 372, ed), p Gillespie, Michigan § Law and Procedure 1 Criminal 16, fn infra. 447. See 8 change argued my in the may is obviated concern It

statute. speak in terms 'of conduct act does not criminal sexual The new or coercion is used to of whether "force or will but Victim’s consent 750.520a, et penetration” MCLA accomplish or "contact”. the sexual 28.788(1) provides seq. "victim need seq.; that the et The act MSA 28.788(9). 750.520i; MSA MCLA resist the actor”. used; primary non-consent is whether force coercion issue appear, from evidence of force may, be an inference it would would, course, generally Robin- See be a defense. Consent coercion. son, (1975). 437, Evidence, Wayne L 484 Rev and Criminal Civil .Re Note, Defendant —A of the Criminal Procedural Protections Privilege Against Rule and the Self-Incrimination Evaluation Excluding Crime, Rev Propensity 78 Harv L Evidence of Commit Balancing (1964); Note, 426, at Trial: Of Other Crimes Evidence (1961). Matters, 70 Yale L J and Other Oliphant 511 v Levin, Dissenting Opinion by J.

I trials, In the where consent was the only earlier issue, of raping acquitted witnesses B and estoppel C.10The doctrine of collateral bars B 0 re-litigation of whether consented " engage estop in sexual acts with him. 'Collateral * * * extremely important for an prin stands pel’ ciple justice. in system our It means adversary when simply that an issue of ultimate fact has once been determined a valid and final by judg ment, again litigated cannot issue between future the same any lawsuit" Ashe v parties Swenson, S 443; 1189; 397 US 90 Ct L25 Ed (1970) 469 (emphasis supplied).11 2d law, The Court rule of but acknowledges this would re-litigation limit it to factual in a issue subsequent arising trial for an out offense same transaction.12 Appeals United States Court of foi*the Fifth rejected

Circuit has the "same transaction” limita- "Although tion: both Mr. Justice Brennan in his Burger Chief dis- concurrence Justice his sent discuss the 'same transaction’ test as a stan- dard for do jeopardy double we believe Ashe rests holding foundation. Instead speaks prohibiting the Court in terms of relitigation in any future lawsuit between the 10 complaint police. not file Witness A did 11 Swenson, 436; 1189; In Ashe 397 S v US 90 Ct 25 L Ed 2d 469 (1970), gunmen. men, engaged poker game, six in a Were robbed masked acquitted robbing players. Defendant was one of the In a corpus proceeding, Supreme Federal habeas States Court United acquittal held that defendant’s was trial at issue the first which the identity precluded prove attempt identity in a his state’s alleging player. trial that he robbed Second another arising All offenses out of the tried same transaction must be White, (1973). together. People 245; v 212 NW2d 222 virtually estoppel Court’s construction eliminates the doctrine doctrine of collateral state, prosecutions in criminal in this Dissenting actually determined at a parties same of issues Wainwright, 464 F2d Wingate previous trial.” 1972) (CA original).13 209, 5, (emphasis 213 re-litigation same The rule prohibiting into the Double issue, Jeop incorporated factual having from Clause, the accused ardy protects than once. The Double "run the more gantlet”14 "that the State guarantee Jeopardy Clause is a not power and be with all its resources [shall] attempts convict repeated allowed to make offense, thereby subject alleged individual for an embarrassment, expense and ordeal ing him to continuing in a state of and him to live compelling * * * ”. Green v United anxiety insecurity and States, 184, 221; 2 L 187; 355 78 S Ct Ed 2d US (1957). 199 not re- Oliphant

It is idle to that suggest regarding a time quired gantlet to run the second of his sexual relations with the circumstances fundamentally B "It is unfair and witnesses and C. of incongruous concepts with our basic totally proof to offer that a permit sovereign justice a specific jury committed a crime which has concluded he did not commit. sovereign of that never remove himself person a could Otherwise sur- blight suspicious from the and aura which guilty specific rounds an accusation that he is of Wingate Wainwright, supra, p v 215. crime.” 13 held The Court proper prosecu- the state in an otherwise "that under Ashe where any purpose relitigate was deter- tion an issue which seeks prior prosecution parties, evidence of the same then the mined relitigation and the must be excluded from trial offered for such precluded asserting from that the issue should state must be any way prior determination.” inconsistent with the determined 1972). (CA 209, 5, Wainwright, Wingate 464 F2d 215 v 1975). (CA Cross, Similarly, Blackburn v 510 F2d 1014 see States, 184, 190; 221; Ed 2d 355 US 2 L v United S Ct Green (1957). Opinion Dissenting that issue concedes

Although Court "[a]n whether 'B’ trials was and prior each of the fact or submitted as consented to the intercourse 'C’ force”, it states that result of the threat question from the issues are distinct "[t]hese to intercourse consented whether the threat force”. as the result submitted A, Indeed, B and C’s why testimony Moreover, infra. material; not II their part see prosecu- to the value is of no that Oliphant conclude tion unless the jurors necessarily asked raped prosecutor them. to so conclude. of B C were actions between the cases (the people the Court parties same now before Oliphant). adjudicated people It was had proved Oliphant’s relationships sexual with B and C were non-consensual.15 to ask prosecutor permitted

Yet was this jury opposite Oliphant to reach the conclusion. against allega- to defend accordingly required tions that factual issues resolved the cases of B erroneously and C had been decided. This was violative of the Clause.16 Jeopardy Double 15 crime, "[o]ffering prior The Court states that evidence of a acquitted, jury which defendant has been to a embarked on a distinct here, asking jury inquiry, as not involve convict does second prior jury It defendant for the contradicting defendant did not commit the proved rejected crime. does not involve the second jury, the first since the first did not find that the crime, only people had not beyond in Supreme that he had a reasonable doubt”. The Court Ashe, 443, theory supra, p this where it stated "As a rule law, therefore, suggest federal is much too that this of principle late to '[i]t estoppel] fully applicable collateral is not to a former [of case, "mutuality” judgment in a criminal either because of lack of judgment may only reflect because the a belief that the Government higher proof had not met the Government’s burden of exacted in such cases for although necessarily evidence as a whole not as to Kramer, 909, every chain’ F2d 913 link United States v 289 [CA 1961].” impropriety greater was done here is at a level of even What Oliphant raping B C if had been theretofore convicted of than Dissenting Opinion

II other The women’s testi- Court declares that raped mony them under similar probative of whether the com- circumstances is partici- plainant consented to in the instant case distinguish- pate him, an issue sexual acts with engage Oliphant’s propensity to in sex- able from activity irrespective ual of consent. statutory the sexual inter-

The issue is whether against "by will”.17 her course was force and raped Oliphant has other While evidence that propensity force, to use if women is of a necessary, intercourse, that deemed propensity to have sexual indistinguishable may from what not proven, rape. propensity suggests propensity A man’s force how he use might react to a woman’s refusal to consent. It does not whether the woman’s con- tend show sent obviated such a or the "will” of the reaction woman. engage propensity "victim’s” sexual tnay not, criminal

intercourse under the new sex- and evidence of those advanced in this case. had been offered on the theories convictions only wrongdoing, crimes here but in other put Oliphant evidence showed wrongdoing: uncharged effect on trial for such allegation acquitted. excluded. charged rapes and the two of which he was ground On that the evidence should have been alone prohibits filing duplicitous The law of a information because it defending recognizes difficulty against multiple charges. Oliphant charged rapes could not have with all four in one been 7, supra. prosecuted See fn He should not have been information. Although nominally more than one offense at a time indirection. proved by rapes, people conviction; one that it was stultifying complainant more of the other women who testified of four the asserted evidence necessary prove rapes four a it is obtain convicting Oliphant raping to maintain that of the jury may raped the not also have decided that he one or against him. 750.520;MSA 28.788. MCLA Dissenting statute,18 ual conduct This be reinforces the shown. use of public policy against the propensity evi- of persons dence. accused sexual of- Fairness requires fenses no there dilution of be the of safeguard against traditional use propensity against evidence defendants.

While to use Oliphant’s propensity force indi- resisted, cates complainant if the he may sought have intercourse by to have sexual force or force, threat of it does not indicate whether resisted or consented uninfluenced by force. sum,

In a propensity use force When he man’s encounters resistance not tend does to show resisted, whether woman submitted under duress or freely. Such a propensity does not consented tend to show that did not woman consent but rather have if may what occurred she did not. The evidence of rapes other tends to show that Oli- phant a rapist be of may guilty offense charged, if thought necessary he he would have force or force to inter- have used show 18"(1) specific conduct, Evidence of of the victim’s instances sexual opinion conduct, evidence of reputation the victim’s sexual evi dence of the victim’s shall conduct admitted under sexual 520g only judge sections 520b finds that the issue not unless and to the extent that the proposed following evidence is material to a fact at inflammatory prejudicial case and that its or nature does outweigh its value: “(a) past of the victim’s conduct with the sexual actor. Evidence "(b) specific activity showing Evidence of sexual instances semen, origin pregnancy, source or or disease. "(2) proposes If the defendant to offer evidence described in subsection (1 )(a) (b), days arraignment defendant within after the proof. on the file information shall motion offer written may hearing court order an in camera to determine Whether the (1). proposed evidence is admissible subsection If new informa under during may tion is discovered course the trial that make the (1)(a) (b) admissible, judge may described in subsection evidence order an in camera hearing proposed to determine whether the (1).” 750.520j; evidence is admissible under subsection MCLA MSA 28.788(10). 399 Levin, by Dissenting Opinion J. Although the evi- complainant. course with the to use force (pro- probative propensity is of dence admissible that pur- to it is not pensity rape) negate complainant’s not Such does pose. evidence non-consent, the issue it is or to show consent tend prove. to of and admissible said Ill pattern The evidence is says Court Oliphant admissible to show that "orchestrate[d] difficult”. of nonconsent proof events make in prosecutor difficulty making The had no so, He did showing non-consent. as prima facie done, testimony through generally at the first trial in the complainant. difficulty His verdict case, ended without a when instant which agree, in jury persuading could not was complainant’s and to jury believe Oliphant’s. disbelieve problem persuasion prosecutor’s

The this case does not differ from that other sexual cases, social relationship offense where the consensual, objective evi- the circumstantial nonexistent, and the ver- dence inconclusive depends jury’s perception dict com- meeting defendant’s plainant’s credibility. consensual, public place have or in will been others, followed a social rela- presence acts tionship and commission the sexual able to tes- absent disinterested witnesses private, prob- as consent. Defendants have similar tify proof in such lems of cases. credibility.

Pattern does not bear on evidence Oliphant evidence three other raped tend complain- to show that women does person a truthful or that is not. Oliphant ant is Dissenting raped charged A man who has and is woman testify falsely with that offense reason to has regard raped without he has whether other greater women; the if incentive is no this were not rape.19 his first allegations

Other do tend to make the complainant’s story believable, more not because Oliphant’s tendency we know more about her or gives truth, tell the but because such evidence us reason to believe that he is the kind of man who charged would That, commit the offense. however, precisely purpose for which this evidence may not be admitted.

IV Oliphant’s relationships The characterization of plan designed proof with the women as a to make of non-consent difficult and to hinder effective prosecution following is based on the factors:

1) Oliphant’s There were similarities in conduct: Oliphant meeting took the initiative women; he met them on the sidewalk; street or transport same automobile was used to them to place where occurred; intercourse the conver- subject sations were similar in matter; the women they were taken to sites; unfamiliar were threat- dangerous weapon ened they with a shown; Oliphant employed were ordered to disrobe; similar manner of sexual stimulation and conver- regarding response. sation the woman’s sexual permits While the law evidence of convictions to be introduced as bearing allegations credibility, of other crimes are not admissible purpose. for this appears agreement There to be considerable that even convictions bearing telling. opinions have no on truth justices See the of the Jackson, 323; (1974). 217 NW2d 22 399 Dissenting Opinion 2) intercourse relationships preceding The social were consensual.

3) discourage the Efforts were made women to the authorities. complaining from 4) deceptive, especially Oliphant’s conduct originally agreed the destination detouring from where intercourse site the unfamiliar upon to occurred.

5) white. All the women were 6) a five- occurred All four incidents within period. month

A well as were as Actually, dissimilarities there conduct.20 Oliphant’s similarities C, women, the initiative B and witnesses took Two accepted walking hitch-hiking. complainant a ride. The to work and A was Witness was stopped window-shopping to talk when her. inception of the automobile at the entered the Three of the women relationship. complainant half an hour entered the automobile Oliphant. after she met automobile; in the the other intercourse occurred Two of the acts of apartment. in an two they that topics Witness A testified of conversation varied. Christmas, weather, celebrating the which was talked about the next marijuana about day, Oliphant if had ever tried asked her she and that had with B dated blacks. The conversation if she had ever and They they talked C said both students. also that related to the fact about they major. They were dating. marijuana and whites Witness and about blacks major college, Oliphant was his which said her talked in about Complainant college professors. also talked about prejudice in her concerned that their conversation racial testified meeting people, They about their attitudes toward home town. talked schools, family, enjoyed dancing, her they her about how both about they patronized; complainant complainant school, atmosphere high at the bar the only marijuana tried had liked but her sister said once. witnesses, alleged Oliphant of to have threatened each the While weapons unspecified referred to. or were different and to to their clothes B and C were ordered Witnesses remove complainant their the ordered to remove A and dance. Witness underpants. were area, farming apartments in B A taken to a C

Witness Dissenting Opinion by Many argued points similarity of the of to the were issue consent not material appearance Court consent. The acknowl- edges that "which tended to facts show a pattern the actual sexual contact between de- in [presumably fendant and the women manner regarding of sexual stimulation and conversation response were] the women’s sexual irrelevant and establishing sys- scheme, immaterial tem to orchestrate so as to events indicate con- sent.” (orchestra-

The Court its rests characterization tion) "striking” and determination on the similari- objective women, ties appears, however, criteria. It similarities meeting —the man initiative, takes the impromptu public place, and in a an automobile is transport used the woman to an unfamiliar site and the man uses the "line” with a number same present many of women—are social relation- ships many which culminate sexual acts which do not.21 points identity

It is not the or the modus operandi give of the other crimes evidence that credibility complainant’s testimony to the but assertions of the other women that the other acts rapes. of intercourse were Without those asser- go only points propensity tions—which —the identity operandi probative. and modus are not They simply pursues show the defendant college-age pursuit white women and that town, part an unfamiliar and the to a secluded residential area. Oliphant accompanied by was another man when B C were and rides, given apartments allegedly raped, taken and He was throughout relationships complainant. alone with A and Tribe, by Trial See Mathematics: Precision and Ritual (1971). Process, Legal L 84 Harv Rev 1329 399 Dissenting impromptu meeting, format: follows a common ride, conversation, more conversation, automobile intercourse. with the

The the encounters other similarities of allegations unaccompanied by women— not consensual— were sexual acts which resulted prosecutor prove any that a fact does tend to Oliphant Evidence would seek to establish. had, tionships pattern, up following struck rela- a similar accompanied him who with other women engaged places in sexual acts secluded participa- allegation would, that their without the exculpatory. non-consensual, tion Such evi- pursues and is dence would show that sexually to women. attractive allegations The the sexual acts non-consensual, all other women would were agree, they inadmissible; tend to are in themselves charged propensity only show to commit pattern evidence does not tend to offense. support complainant’s testimony; is the allegations rape tendency. which have that probative pattern is not with- Since the out the evidence allegations becomes allegations, only allegations it is the inadmissible with those probative. alone are which thus The Court’s characterization becomes vehicle which evidence otherwise inadmissible seeking princi- Court, becomes admissible. pattern pled explanation, declares that there is a deceptive, pattern cannot, and that but rape, allegations apart from the inadmissible distinguish from other situations where this case following pattern women, social men past, they have found successful in the conduct engage sexual acts on either brief consensual acquaintance. extended Oliphant Levin, Dissenting Opinion J.

B Assuming that the consensual format of the relationships points similarity and the other Oliphant’s material to the conduct were issue of consensual, whether the intercourse was it does not follow there were that because similarities plan, there was a or that if there was a its purpose appearance consent, was to an create it did so. simply is not to conclude that

It. reasonable pattern design, because there is a there is a pattern that because the is consensual the sexual op- acts were non-consensual. The conclusion is posed ordinary experience sexually to the active relations, men and women who have sexual partners period having time, different retrospect over pattern in the manner of the encoun- relationship. ter and the course of the appears Oliphant deceptive itWhile was relationships his with the and the other women and that he was in this manner able transport them to unfamiliar sites where acts of objective occurred, intercourse concluding there is no basis purpose give appear- that his was to an ance consent rather than to induce the women accompany Similarly, him. his threat to use a weapon may prompt compli- have been to secure give ance with his demands rather than to an appearance of consent.

Although white, all the women are that would appearance not tend create of consent. The fact that all four incidents occurred within period purposeful conduct; a five-month indicates purpose appear- does indicate a to create an ance of consent. complainant’s Dissenting Opinion complaining

sought discourage from her to the inculpatory; it did not tend authorities create an part appearance of consent on her but of that a woman knows non-consent. The fact man’s name or identity support does not an infer- give appearance ence or that she consented to him. sexual intercourse with testimony regarding the other women of

Oliphant’s discourage prosecution efforts to does not tend to an element of the establish offense or guilt rebut a defense but to consciousness show guilt may from which an inference of be drawn. guilt Evidence of in other consciousness cases guilt does not tend to show consciousness this accordingly, and, case is not material relevant. Even if one concludes that consensual for- Oliphant’s deceptions designed mat and were to give appearance consent, and to make non- prove, they consent difficult to could not in fact deceptions, public meeting, have done so. The trip may talk small and automobile have tended to dating relationship. show that this was a normal relationship But the existence of such a does not indicate that the woman consented to have sexual intercourse and therefore does not tend to

nega- tive non-consent or make non-consent difficult to prove. by

It is not assumed either men or women that accepts when a woman an invitation to socialize accompany with a man and him in an automobile thereby that she has indicated her consent fo engage in sexual intercourse with him. It would not be reasonable for the infer that consented sexual to have Oliphant simply with intercourse spoke because she him, entered his automobile and trav- places public him eled with to several entertain- Oliphant Dissenting Opinion deceptive arguably ment. The contrived con- relationship tend, would not sensual format of the support therefore, of consent an inference or to prove. make difficult to non-consent may system scheme, A criminal not be admissible, must, shown in the abstract. To be minimally, sity propen- fact, other tend show than crime,

to commit that is material and rele- vant. The fact other evidenced such crimes dispute honestly in evidence must and of suffi- importance probative cient so that worth of outweigh may the evidence the otherwise unwar- prejudice admitting ranted to the defendant such evidence. testimony

While the of the other women tends complainant’s testimony corroborate subjected methodology she was experienced by to a similar to that they

other women who claimed raped by Oliphant, methodology were neither the they raped, although nor the were propensity rape, has a tends to show that did not con- testimony sent. The of the other women shows force; that uses it not does show that she consent; did not it is not of non-consent.

V opinion may encourage police The Court’s to attempt persons to locate other with whom an person accused once had a social and sexual rela- tionship testify they willing to determine whether are

against If, reason, him. for whatever other persons willing likely so, are to do that is there points arguable similarity will be in the un- charged relationships and earthed in which the manner the—in

parties met, the car the accused frequents, drives, the restaurants and he bars Mich Dissenting Opinion to arouse his talk, employed the manner small libido, acts, the sexual person’s the other own relationship. the subsequent exploitative The such testi- decision to admit to convict. to a decision Al- mony is tantamount to admit discretion such lowing judges trial conferring them a equivalent evidence is guilty. but direct a verdict discretion to all it will substitute its Court states What judge. the trial has for that of judgment that, extraordinary this is so occurred in case all, appel- at judgment, permitted if it is my responsibil- a supervisory late courts must assume case, whether determine other ity, case admitted and to properly crimes evidence was hear, trial, appeals interlocutory even before may be admitted decide whether such evidence exacted on pleas lest to lesser offenses be guilty will be representation such admit it. will judge offered and upon be called admit Judges probably will prosecutor feels such evidence cases where case, his guilty strongly that evidence, arising In such weak. cases without there will always out of consensual social relations judge points similarity dissimilarity. admitting have a basis for always will therefore evidence, excluding it. the other crimes in this had no basis for judge The trial case concluding that this was not a common consensual allegations In except rape. for the allow- pattern discretionary of such evidence on a ing admission effect, is, on trial conferring the Court basis on their authority to admit evidence based judges defendant, the com- credibility of the view other women. plainant be exer- inevitably discretion will judge’s Dissenting Opinion representations cised based on the made to him credibility and his view of the of the witnesses simply because this has not Court delineated and objective exercising cannot delineate such discretion. criteria for may judge; It that a trial asserted in admit- ting making judgment evidence, this is not a final ultimately jury and that it is for the to decide pattern, whether there is a whether a consensual pattern of non-consent and whether allegations are to be believed. The case, but, was not so instructed in this even if it been, had the outcome would no doubt have been why the same. The reason other crimes evidence is generally precludes objec- excluded is because it jury. tive assessment of the evidence Introduction of such evidence so transforms a prosecution require puncti- criminal as to the most appellate exception lious review lest the become reported unreported appellate the rule as monotonously decisions come down "no abuse of discretion”.

VI Oliphant’s operandi The evidence modus part people’s first introduced as of the case-in-chief through complainant. While the defendant added his version, testimonial it was prosecutor, "opened deféndant, who the door”. appreciate prosecutor obliged

I tending transaction, show the entire the evidence oppose tending support as well as that conviction. prosecutor

Where, however, that, contends pursuit because the defendant’s format Mich Levin, Opinion by J. Dissenting appearance of consent women tends to create permit- exculpatory, he should be therefore pursuits by other such the to ted defendant, offer evidence simpler means of accom- and fairer the assuming agreement purpose, plishing the stated exculpatory, premise the format with the option give the the defendant would be to having exculpatory limited or ex- evidence such having cluded, crimes the evidence or of other admitted. civility the initial of the relative

Evidence prose- relatidnship to either the was not essential exposing the Rather than de- cution or defense. highly prejudicial other crimes fendant to the jury impossible the evidence, to which made competing testimony objectively on the view the consent, and the the defendant issues of force and people been better served this state would have preceding by excluding altogether facts the the place trip the the of the to where commencement occurred. sexual acts complainant prosecutor, counsel,

The defense have instructed to con- could been and defendant regarding fine circumstances simple relationship statement, initial to a judge, been made could even have which accepted complainant had an invitation that from the defendant his to with him in auto- ride judge The could state that circum- mobile. relationship time will their before that stances of they may to tend create because not be disclosed complain- impression of either the an unfavorable jurors defendant, and could instruct ant speculate the other it was one or whether unfavorably by fuller disclo- would be viewed who preceding relationship. sure story her could have told still Dissenting Opinion supposed she was have been taken that place one another, where was instead taken she raped. then have The defendant could told his story. then decide which version would accept having put thumb, without the court its nay justice. feet, both on the scales of suggest

I do not such mean truncated desirable, disclosure is but at least prosecutor, chance, would would have had a as the unbeguiled jury allegedly a the before "orches- trated” events. approach recognize

Another would that if a even man has a to orchestrate events to give appearance consent, of there will of neces- sity relationship be a minimal social that is not simpler purpose contrived to that meeting to the end but inducing accompany women and them to place they to a him where can be solicited for purposes. might judge sexual The exclude evidence pf relationship so much of the as he determines is (orchestrated) give appearance contrived the appreciate objective consent. I that there are no making determination, criteria for such but nei- making ther are there for the determination made judge approved by the and this Court this case. balancing any prosecution

In unfairness to the any may from inferences that be drawn as a result relationship of the consensual nature of the against the unfairness to the defendant from the that inferences allegations will be drawn as a result the rapes,

of other the accommodation here suggested recognize legitimate would, think, I prosecution protected of the interest to be from right contrived evidence of the defendant approach advantage, to a fair trial. This has the comparison suggestion (beginning with the first Opinion by Dissenting cautionary story instruc- middle apprised tion), jury not be need jury excluded, the will have evidence has been relationship, complete history and, more complainant are allowed and defendant since the to testify fully, be a more mean- there will more ingful assess- cross-examination basis for credibility. ment of

VII Legislature sexual has declared propensities are case of a barring paralleling admissible, the rule against propensity defend- evidence admission of in criminal cases. ants exception in the affirmance of this created provide cases, will, in other if emulated

conviction a newly engrafting exceptions basis policy. declared pattern

If the nature and consensual relationship non-consent, it is deemed arguably probative consent. Just as is also identify people in the will seek to similarities defendants, histories of defend- social sexual power court’s ultimate will invoke the ants evidence, if control the of that even exercise admission power statute,22 with a and will conflicts striking pattern similarities to establish seek out supportive of defendant’s behavior relationship the sexual was consen- assertion that sual. always possible to rationalize distinc-

While principled tions, it will be difficult reconcile on a treating differently from com- defendants basis plainants. (On (1964). Rehearing), 531; v Peuler 130 NW2d Perm

Case Details

Case Name: People v. Oliphant

Court Name: Michigan Supreme Court

Date Published: Dec 31, 1976

Citation: 250 N.W.2d 443

Docket Number: 55781, (Calendar No. 6)

Court Abbreviation: Mich.