State v. Lajoie

1991; April July reassigned Argued decision of the Court and submitted affirmed; April Appeals judgment of the circuit court affirmed reconsideration May 25, 1993 denied OREGON, STATE OF Respondent Review, LAJOIE, CLINTON KEITH Petitioner on Review. S37935)

(CC 10-88-08977; A63706; SC CA P2d 479 Michael V. of Johnson, Clifton, Bolin, Larson & Phillips, P.C., Eugene, argued cause and filed the petition on review. petitioner Adams, General, Salem,

Jas. Assistant Attorney argued the cause for With him review. on the respondent response General, brief were Dave Frohnmayer, Attorney Virginia Linder, General, Solicitor Salem.

GILLETTE, J. J., and filed an in which Van Unis, opinion dissented JJ., and Fadeley, joined. Hoomissen GILLETTE, J.

At issue this case is whether an accused’s failure to statutorily give mandated notice of his intention to offer past requires evidence of the a trial court to refuse to allow the accused to evidence at trial victim’s sexual behavior

present such if and, does, it whether such a specific presented Under the here, constitutional. facts we require require- hold that such failure does so ment is constitutional. and that the charged rape degree, Defendant was in the first sodomy degree, 163.375, 163.405, ORS the first ORS degree, involving 163.427, sexual abuse in the first ORS days age years. child under the Seven before the sched- date, uled trial defendant made a written motion to offer evidence of the sexual behavior under 412(2).1 The OEC on the state moved to strike defendant’s motion

ground timely relying filed, that it was not on OEC 412(3), requires which than the motion to be made “not later days” before the scheduled trial date. The trial court granted concluding defen- motion, that, state’s because untimely, required pre- dant’s motion was the court was alleged clude evidence offered defendant at trial of the attempted past Defendant intro- victim’s sexual behavior. during duce the same evidence cross-examination precluded witnesses, the cross- state’s but the court ruling an its that the evidence examination as extension of pro- comply for failure to with the notice was inadmissible jury A defendant of all three cedure of OEC 412. convicted charges. argued appeal, 412 does not that OEC

On where the apply elicited on cross-examination to evidence scope properly of the direct within the is cross-examination argued evi- of Defendant also examination. mandatory with for failure to sanction as a dence under 412 is unconstitutional of OEC The Court Oregon United States Constitutions. Law,” rel Davey v. Oregon’s “Rape State ex Shield called sometimes 66-67, infra, (1991), pp 286, 288 1, 823 at Frankel, is set out n P2d 394 312 Or opinion. text of this 105 Or Lajoie, App without State v. opinion. affirmed Appeals (1991). P2d 1230 that OEC argument We first consider defendant’s elicited on cross-examination. 412 does not to evidence apply (1992) (“As Pearce, 411, 414, Or 840 P2d 65 Priest v. See we customary methodology, begin under our law.”). sub-constitutional pertinent provides: “(1) law, in a Notwithstanding any provision other 163.425, a crime described in ORS 163.355 to prosecution crime, to commit such a attempt in a for an prosecution or reputation past evidence of the sexual behavior opinion or such crime is not admissible. alleged victim of “(2) law, in a Notwithstanding any provision other 163.425, a crime described in ORS 163.355 to prosecution for crime, to commit such a attempt or in a for an prosecution reputa- than past of a victim’s sexual behavior other admissible, unless such tion or evidence is also not opinion or evidence is: reputation opinion evidence other than (a) “(a) Admitted with paragraphs accordance (b) section; and of subsection of this “(b) that: Is evidence

“(A) victim; to the motive or bias of the Relates or

“(B) explain scientific or medi- necessary Is to rebut or state; by the cal evidence offered

“(C) to be constitutionally required Is otherwise admitted.

“(3)(a) committing rape, accused of sod- person If the sodomy or sexual omy attempted rape, or sexual abuse or section under subsection of this abuse intends to offer instances of specific written motion to behavior, the accused shall make a before the date on days not later than 15 offer such evidence in which such evidence is to be offered which the trial that the court allow begin, except scheduled trial, if date, including during motion to be made at a later newly discov- either that the evidence the court determines through earlier not have been obtained ered and could to which such diligence due or that the issue exercise of Any in motion newly has arisen the case. evidence relates all other shall be served on paragraph made under this parties, through victim the office of the alleged and on the prosecutor. (a)

“(b) this paragraph motion described by a written offer of If accompanied proof. shall be subsection proof that the offer of contains the court determines section, the court shall in subsection of this described if such evidence is in chambers to determine hearing order a witnesses, hearing may call parties admissible. At such victim, relevant evidence. including Notwithstanding and offer 40.030(2), if relevancy ORS of the depends which the accused seeks to offer the trial fact, court, the fulfillment of a condition of at the upon hearing hearing in subsequent in chambers or at a chambers accept shall evidence on the purpose, scheduled for such of fact is fulfilled and shall issue of whether such condition determine such issue. “(c) hearing If the court determines on the basis of the (b) of this subsection that the evi- paragraph

described which the accused seeks to offer is relevant and that dence outweighs danger value of such evidence probative evidence shall be admissible prejudice, unfair such by specifies the extent an order made the court may respect and areas with evidence which be offered may victim be examined or cross- which the evidence under this subsec- admitting examined. An order government before trial. appealed tion be “(4) section, ‘past For of this the term purposes behavior other than the sexual behavior’ means sexual behavior with sodomy or sexual abuse respect rape, to which alleged.” rape, sodomy or sexual abuse attempted the state argues Neither defendant nor the alleged evidence at issue in this case is not evidence of of OEC meaning sexual behavior” within the victim’s “past with asserts, however, that failure to 412.2 Defendant limit 412 cannot be used to the notice of OEC 304, 307, Reiter, 65 Or cross-examination, App State citing (“Rule rule and does evidentiary 412 is an 672 P2d 56 limit a defendant’s cross- its terms or purpose witness.”). examine an adverse trial, argument regard to some did make that At defendant however, argument appeal. evidence; pursue

proffered did not 68 wording provides 412 no basis for defen- of OEC argument. limitation on the OEC blanket

dant’s past an victim’s sexual introduction of “evidence” of By prosecution terms, a sexual crime.3 its behavior in a distinguish between evidence offered OEC on direct examination and evidence offered ation. does

on cross-examin- 412(1) “reputation opinion provides that or OEC past [a sexual behavior of an victim of evidence of sexual] is not admissible.” No distinction is made crime opinion reputation or evidence introduced on cross- between and such evidence introduced on direct exam- examination type simply admissible,” ination. This of evidence is “not regardless it of the method which is offered. 412(2)

Similarly, provides OEC that “evidence of reputation opin- past behavior other than or specific evidence] [i.e., acts is also not admis- ion evidence Subject compliance only exceptions. sible,” with three 412(3), procedural requirements of OEC such evidence is “(A) only [r] if it elates to the motive or bias of the admissible (B) necessary explain [i]s alleged victim; to rebut or scien- or (C) [i]s state; tific or medical evidence offered constitutionally required to be admitted.” OEC otherwise 412(2)(b). exceptions applies Each of those three to evidence First, that could be elicited on cross-examination. relating victim’s motive or bias could be elicited on cross- to a explain Second, to rebut or medical examination. evidence could indeed, the cross-examination; be elicited on attempt an at issue in this case was cross-examination requirements constitutional Third, elicit such evidence. opportunity to elicit evidence on cross- can demand Alaska, examination. Davis v. 415 US 94 S Ct See (1974) (denial 39 L Ed 2d 347 of cross-examination Amendment). show bias violated Sixth 412(3) requirement Further, of OEC the notice sought makes no distinction between evidence on direct examination to be elicited sought and that to be elicited on cross- applies only prosecution defined in OEC to “a for a crime ORS 163.355 to 412(1). 163.425, prosecution attempt or in a for an to commit such a crime.” OEC crimes, sodomy, rape, ORS 163.355 to 163.425 define various sexual such as sexual abuse. 412(3)(a) OEC provides exception examination. from the “if the court determines either that requirement could newly evidence is discovered and not have been earlier of due obtained exercise or that through diligence issue such newly to which evidence relates has arisen in met, the case.” If either of those conditions the defendant can introduce evidence of sexual behavior even though the notice was not met. The defendant could introduce such evidence either by cross-examination state’s or by own, witnesses direct examination of his 412(3)(a) nothing wording suggests otherwise. Finally, 412(3)(c), which how the describes court is to determine the admissibility of evidence offered 412, under OEC refers to evidence expressly offered cross- If court, examination. the trial following the in hearing 412(3)(b), chambers described in OEC determines that the to be sought introduced is relevant more proba- and tive than “such prejudicial, evidence shall be in admissible the trial to the extent an order made by the court specifies evidence which may be offered and areas with to respect which the alleged victim may be or cross- examined 412(3)(c) examined.” OEC (emphasis supplied). Thus, OEC 412(3) directs the trial expressly court to prescribe what be elicited, on direct only examination, but well, on cross-examination as in a that treats the paragraph two kinds of examination as parallel. 412,

Like the of OEC the wording sought purposes to be served 412 by OEC also rebut defendant’s as to argument the scope of the 412 proper rule. “OEC is a statute ‘the of principal is to of purpose [which] victims protect crimes from of degrading embarrassing disclosure inti ” mate details about their lives.’ State ex rel Davey private Frankel, 312 Or 286, 823 P2d 394 (quoting Legislative Commentary to OEC reprinted (2d 1989)) (brackets Kirkpatrick, Evidence 202 ed Oregon original). Another of purpose is “to encourage victims of sexual misconduct to and assist report * * prosecution of crime* preventing highly prejudicial evidence from thus to reaching jury and helping protect Id. at 300 (Unis, jury impartiality.” J., dissenting). “The of prospect having past sexual conduct affects not divulged the victim’s also only crime], [the decision sex but report the victim’s to see the willingness prosecution through.” Note, The Public Constitutionality Statutorily Restricting of Access to Judicial The Proceedings: Rape Case Shield of (1986). Provision, Closure Mandatory 66 BUL Rev 412(3)

The notice set forth in OEC requirement serves number of functions:

“ requirement essentially ‘The notice motion forces defendant to tell the and the prosecutor court advance to use ask it trial of his intention be certain evidence and to * ** addition, proof at trial. admitted offer will must depiction attempt prove of what the defendant provided be so all know at The parties what is issue. requirement prevents surprise prosecutor, notice weigh The can the evidence prosecutor victim and court. admission, object will and determine whether or not he to its truthfulness, organize its legal with the victim on confer argument strategy. it if that the chosen The oppose signals importance also the court of the requirement have judges issue since some tended assume procedure encourages relevancy prior sexual conduct. ” automatically.’ act judges to less Procedure, Practice and Graham, & Federal Wright Just, L Enf Forcible Nat Inst & Crim (quoting § 5390 (1978)). Issues 26 Rape: Analysis Legal An in Michigan, a similar shield statute Regarding rape “The stated, States has Court of United the Supreme state inter serves legitimate notice-and-hearing harassment, and undue surprise, ests in protecting against Lucas, US_, v. 1743, 1748, 111 SCt Michigan delay.” (1991). notice, a By 15-day pre-trial L 2d 205 requiring 114 Ed surprise 412 protects against statute like OEC shield rape the defendant’s time to investigate the prosecution allowing its admission. against arguments and prepare evidence time for the allowing delay by undue protects against statute the proposed of admissibility on the hearing hold court to opinion in a separate Blackmun stated As Justice evidence. Lucas, supra, “a Michigan judgment concurring specifically designed is notice-and-hearing requirement court the oppor the trial providing delay by minimize evidence admissibility proffered on the to rule tunity Ct at 1749. trial.” 111 S advance however, Most the rule importantly, protects against harassment. The “shield” shield statute like rape OEC 412 is for the benefit of the victim. The alleged trial of a sexual crime victim to discuss intimate requires alleged painfully in front matters and to allow others to strangers discuss A these matters. notice such as the requirement one con- 412(3) tained in OEC protects alleged victim against and surprise needless anxiety by ensuring adequate warning of the extent of the ordeal that he or she will face at trial. 412(3), Under OEC if the fifteenth day before trial passes the defendant has not filed a written motion to admit past evidence, sexual behavior then that, victim alleged knows (the two except under relatively exceptional circumstances evidence newly is discovered or the issue is arisen), he newly or she will not be at trial required to discuss any intimate beyond matters the criminal itself, incident nor to listen as others discuss those matters. —

None of those purposes the avoidance of surprise, the prevention of undue delay, and, foremost, the protection — victim would be served interpretation of OEC 412 that rendered cross-examination immune from the rule’s limitations and procedural requirements. To serve those purposes, OEC must apply to evidence sought on cross-examination, as well as to sought direct exam ination. Because this interpretation is supported by stat ute’s and best language fulfills the statute’s we purposes, hold OEC including 15-day 412(3), to evidence applies offered on direct examination and cross-examination.

We next consider the sub-constitutional question whether required preclusion as a sanc mandatory 412(2) tion under the facts of this case. OEC states that “evidence of a victim’s past sexual behavior other than repu * * * tation or opinion admissible, unless such * * * * * * [ajdmitted in accordance with para (a) (b) graphs subsection of this section.” OEC 412(3)(a) provides: * * “If the person accused* intends offer under subsec-

tion of this section evidence of specific instances of the behavior, victim’s sexual the accused shall amake written motion to offer such days evidence not later than 15 the trial in which such evidence is to the date on which

before may court begin, except be to the is scheduled offered date, including during the to made at a later allow motion be trial, newly that the evidence is if the court determines either through could not have been obtained earlier discovered and which diligence due or that the issue to such the exercise of case.” newly relates has arisen the 412(2) (Emphasis supplied.) literal of OEC Under the words 412(3)(a), specific of an evidence of instances then, and alleged not admissible unless sexual behavior is at the evidence least the defendant moves to introduce sought days be the evidence admitted trial or unless before exceptions newly evi- stated for discovered falls within the newly arisen issue. evidence related a dence or admittedly case, failed to meet this defendant argued although 15-day requirement. And, notice sought a related to of the evidence he to introduce that some newly correctly concluded that the issue, the trial court arisen question present from of the case. issue in was the outset Consequently, 412, the evi- under the literal words of OEC sought admissible,” to introduce was “not dence defendant by preclusion was mandated statute. argu- brings constitutional This us to defendant’s argues preclusion as a that the of evidence Defendant ment. mandatory requirement failure to with the sanction for and com- OEC 412 violates confrontation Oregon pulsory process I, Article section clauses of Constitution, to the Constitution and the Sixth Amendment According defendant, those constitu- of the United States. require finding provisions a of willful violation or tional prejudice sanction be exercised. before state constitutional claims We address defendant’s Sterling Cupp, 611, 614, Or 625 P2d first. See (“The analyze sequence proper law, to the state’s reaching including law, federal its constitutional before claim.”). pertinent constitutional state constitutional Oregon provision Constitution, I, 11, of the is Article section provides: which shall have

“In all criminal accused prosecutions, jury county public impartial committed; be heard shall have been which offense counsel; to demand the nature and cause of himself and him, thereof; have a to meet copy and to against accusation face, compulsory process and to have witnesses face to however, favor; any provided, witnesses in his obtaining cases, and with the capital in other than person, accused judge, may byjury the trial elect to waive consent of alone, judge tried the of the court such by consent to be however, in writing; provided, that the election to be circuit court ten jury may members of the render a verdict of guilty guilty, except guilty or not save and a verdict of of first murder, only which a unanimous degree shall be found verdict, otherwise; further, provided and not that the exist- and constitutional relative to criminal ing provisions laws all shall be continued and remain effect as to prosecutions taking for crimes committed before the effect of prosecutions this amendment.” this court has never before the

Although confronted I, 11, under Article section of the constitutionality, preclusion under 412, sanction it has confronted a similar question Mai, under State v. the statutes. reciprocal discovery 269, 280, (1982), Or 656 P2d 315 the court held that preclusion

“the sanction of ORS 135.865 is not inconsistent I, with Article section Oregon Constitution, of the pro- vided that the court finds that the prosecution is prejudiced by the defendant’s failure to reciprocal with the statutes, discovery further, and provided that it that appears no preclusion sanction short of effectively will avoid the prejudice which the defendant’s lack of compliance created.”

That passage that suggests constitutional of Mai are twofold. Mai requirements First, actual requires Mai prejudice Second, to the prosecution. a “least requires restrictive means” approach to sanctions. Not surprisingly, (as dissent) relies does the passage; this he argues that the trial court erred a requiring showing to the prejudice prosecution from the late motion before sanction. exercising preclusion believe, however, We that defendant and the dissent have mistaken the statement of the in Mai for the holding rationale case and that a true a result in this appreciation holding permits case with the respects complies legislative choice of preclusion as sanction for violation of the notice of OEC 412. opinion, point in the Mai the court

At earlier holding general manner, a as follows: in more stated its short, procedures although “In we hold that the sanction I, discovery permissible are under Article under the statutes applied also that the statute must be section we hold will by imposing the sanction which reasonable manner rights and which will infringe upon least the defendant’s goal the statute.” achieve passage supplied). (emphasis is the It is that

Id. at 277 present understanding applying key it in Mai and to governing principle passage case, because that states passage relies, on which defendant on the other Mai. The principles application those hand, derived was from — question specific there Because ORS 135.865. statute — —412 involves a different statute this case necessarily require principles the same Mai do not behind result here. concerning principles suggests two basic Mai on the sanction: I,

effect of Article section facially providing of is not for evidence statute Oregon provision of the Consti unconstitutional under (“the discovery procedures stat (2) under the tution sanction 11”); permissible a I, Article section utes are under providing preclusion of for unconstitu statute only employs applied of a trial court the sanction tional as if serve when a less drastic sanction will exclusion of evidence preclusion. purpose as the same necessarily inquiry and statute- case- latter provided

specific. issue, 135.865, a at ORS Mai, the statute range of sanctions: duty imposed of breach of the being apprised any

“Upon 135.873, the court of 135.805 provisions ORS material, violating party permit inspection of order continuance, witness to grant permit or a or refuse to the material not testify, refuse receive disclosed, as it considers or enter such other order appropriate.” expressly although

(Emphasis supplied.) stated And, it never avoiding implicitly in Mai identified much, as court purpose prejudice prosecution behind ORS to the as the range and that available sanctions Based on the of 135.865. putative purpose reasonably statute, the court could that, if conclude one of the lesser sanctions available under purpose ORS 135.865 would serve the of the statute avoiding any prejudice prosecution, preclusion to the of evi- constitutionally permissible. dence was not foregoing analysis, application Under the a correct principles requires ofMai in the context of OEC 412 (1) this court determine what other sanctions are available (2) purpose require statute, under the what the of the notice any ment is, and whether lesser sanction this case purpose fully. analysis would serve that We turn to that OEC 412.

We consider first the sanctions that are available under the rule. Unlike ORS 135.865, OEC 412 does not provide range wording a wide of sanctions: The provides only single preclusion. sanction, viz., Thus, newly the case of a late motion where the evidence is neither newly discovered nor related to a issue, arisen the court has (because options: preclude always two is an have the evidence or this choice) (2) grant might available a continuance, which “recreating” 15-day period the effect of notice 412(3)(a). (We required by OEC need not decide in this case following option reopen whether the the second would, in fact, 15-day period.) is not the same kind of statute that the court had under consideration in Mai. purposes require-

We next consider the of the notice already ment of OEC 412. As we have discussed at some length scope in our examination of the rule, purposes prevent behind the are to unfair surprise, delay, protect and, to avoid undue trial foremost, to purposes may victim. The first two be said to be ‘ analogous ‘prejudice underlying to the to the state” rationale they arguably permit the statute in Mai. such, As would — balancing analysis balancing same kind of used Mai against the extent ofthe defendant’s need for the evidence surprise delay (i.e., state’s need to avoid and undue to avoid — prejudice). purpose protection alleged But the third of the — legislature already victim cannot be balanced. The has alleged struck the balance between defendant and victim in protected. OEC 412. It has said that victims are to be If a defendant has evidence that will interfere with that manner. timely must so in a say the defendant protection, — found already that “balancing” beyond rule any other

Any — relative peace and destroys clarity in the statute confer on the rule was intended to mind that has looked this court Put differently: legislature victim. which exclude evidence about said, “We wish to in the and eye flatly a constitution forbids notice, unless timely there is not choice, couched as is a policy so.” That doing permissible our of the rule’s that will relieve a defendant it is in terms the defendant’s that are beyond situations requirements did not assert the existence in this case control. Defendant such situation. any — the continuance whether a we consider

Finally, available even arguably other than preclusion only option — serve these purposes circumstances would under these as well as preclusion. of the statute” “achieve goal due to mitigate any prejudice might a continuance Although (as we have trial delay it would aggravate surprise, the alleged of protecting would defeat purpose explained) selection anxiety. legislature’s As the needless victim from all accomplish can reflects, only preclusion sanction single can here, only Where, as fully. purposes three Mai, supra, State statute,” of the “achieve the goal[s] Constitution, Oregon of the I, Article section Or at that sanction.4 permits that the trial we hold analysis, on the foregoing

Based for failure of preclusion of a sanction imposition court’s violate 412 does not of OEC with the notice requirement or the clause under the confrontation rights this defendant’s Oregon of the I, Article section clause of compulsory process is a reasonable of the rule The notice requirement Constitution. evidence.5 right present on the defendant’s condition — — in which a a situation and we do not address does not involve This case rule) (for avoid the reason other than to a continuance some obtains variety timely. The defendant’s notice becomes postpones date of trial that so might, its might and the trial court seek in which defendant circumstances on the great permit to comment discretion, grant us a continuance is too choose to (Of course, that no workings we assume of OEC 412. event on the of such an effect purpose simply behind grant thwart judge continuance would 412.) ground question means Oregon on this disposition constitutional Our waived his ground that defendant address the alternative we need not under the federal We now to the same question turn the on from precedent Supreme Based recent constitution. same States, United we reach the conclusion Court of the I, we under Article the Sixth Amendment reached under defen- 11: Preclusion of evidence does not violate this section com- under the confrontation clause the rights dant’s Amendment, the clause the Sixth process pulsory because the 412 notice is a reasonable condition on requirement evidence. right present defendant’s to the The Sixth Amendment Constitution “In all in criminal prosecutions, United States provides part: * * * to be confronted with enjoy the accused shall the have him; process the witnesses against compulsory * * Lucas, I n Michigan v. in favor obtaining witnesses his the the interplay supra, Court addressed between Supreme In the Sixth Amendment and a statute. Michigan rape-shield Lucas, the made it in may, Court clear courts Supreme cases, the of evidence some sanction employ without the criminal defendant’s Sixth Amendment violating to confront adverse witnesses and to a defense. rights present in to the Court’s decision background Supreme

The v. Lucas is as Michigan Michigan, follows. rape-shield statute in that if a defendant to offer provides, part, proposes evidence of with defen- the victim’s sexual conduct past dant, he or she must file a written motion and an of proof offer 750.520j § within 10 Mich Laws arraignment. Comp days (1979). hearing The trial court then order an camera Id. In People to determine whether admissible. Williams, v. rev’d (1980), 95 Mich 289 NW2d 863 App (1982), grounds, other 416 Mich 330 NW2d 823 held that notice-and-hearing Court of Michigan Appeals it barred was unconstitutional where the defen- requirement from evidence of sexual conduct with offering dant Lucas, v. Mich People later, victim. Seven years (1987), Court Michigan 408 NW2d 431 App in Williams. opinion followed its earlier Appeals States certiorari granted Court of United Supreme Lucas “to determine whether Court of Michigan Appeals’ excuse, question failing, without with the offer requirement of 412. per jurispru- se rule is consistent our Sixth Amendment Michigan supra, Lucas, dence.” 111 S Ct at 1746. per against preclu

Because Lucas involved a se rule sion of evidence in a certain cases, class of the Court framed very narrowly: question pre the issue before it “The sole legitimate sented review for our is whether the interests justify precluding served a notice can ever prior relationship rape evidence of a between a victim and a criminal defendant.” Ill S Ct at 1747. The Court “yes.” According determined that the answer was notice-and-hearing requirement legiti Court, “The serves protecting against surprise, mate state interests in harass delay. ment, and undue Failure to with this requirement may justify in some cases even the severe sanc preclusion.” tion of Ill at S Ct 1748. The Court relied primarily opinions on two earlier in which it had concluded preclusion discovery that evidence as a sanction for a viola Taylor Illinois, tion did not violate the Sixth v. Amendment: (1988); L 400, 108 484 US S Ct 98 Ed 2d 798 and United 422 L Nobles, States v. US 95 S Ct 45 Ed 2d 141 (1975). Unfortunately, the Lucas Court declined to consider preclusion justified whether was in case before it. Although argued preclusion the defendant had “that was an penalty (emphasis original), in unconstitutional the Court declined to address that this case”

question: preclusion express opinion

“We no as to whether or not justified Michigan Appeals, was in this case. The Court of here, we did not address whether the whose decision review Rather, it. trial court abused its discretion on the facts before preclusion a se rule that is Appeals adopted per the Court of prior in all cases where the victim had a unconstitutional judgment with the defendant. That was error. relationship in the first Michigan leave it to the courts to address We Michigan’s rape-shield statute authorizes instance whether whether, case, preclusion on the facts of this Amendment.” rights violated Lucas’ under Sixth Michigan supra, Lucas, Nonetheless, the 111 S Ct at 1748. v. opinion which the and several ofthe cases on Court’s Lucas satisfactory permit opinion Sixth us to fashion a Lucas relied analysis OEC 412. Amendment

79 Supreme in Lucas, Court stated a defendant’s As the “ right ‘[T]he rights are not absolute: Sixth Amendment testimony present without limitation. The relevant “may, appropriate cases, bow accommodate other ’ ” process.” legitimate 111 SCt interests the criminal (quoting 44, 55, 483 Ct Arkansas, 1746 Rock v. US 107 S at (1987), quoted 2704, 97L 2d which in turn Chambers v. Ed Mississippi, 284, 295, 1038, L Ed 410 US 93 S Ct 2d (1973)). According “[restrictions Court, to the on criminal pre rights to and to defendant’s confront adverse witnesses ‘may arbitrary disproportionate not be or sent evidence ” they designed purposes are 111 S Ct at 1747 serve.’ 56). supra, (quoting Arkansas, And, US at as Rock applyingits evidentiary “In Court stated in Rock v.Arkansas: by a must evaluate whether the interests served rules State rule tutional justify imposed on the defendant’s the limitation consti ** rightts] US at 56.6 constitutionality preclu-

Thus, to determine the Amendment, we sion under the Sixth must determine purposes designed 412 is whether the that OEC to serve justify imposes on a defendant’s limitation that rule rights instead, whether, that limitation constitutional or already arbitrary disproportionate purposes. We those purposes behind the notice have identified prosecution surprise preventing 412: to the OEC alleged alleged delay, avoiding protecting the victim, undue trial and anxiety concerning scope the victim from needless produced imposed to be at trial. The limitation the evidence procedural the defen- the entire scheme discussed above: specific at least dant must move to introduce the days except he or did not discover trial, before where she (and it in the exercise the evidence could not have discovered newly diligence) or evidence relates to an issue of due the case. arisen the justified, procedural requirements are or those

Are they “arbitrary purposes they disproportionate” are testify,” “right specifically because to the defendant’s Rock referred Arkansas, testimony. against posthypnotic 483 US Rock v. aper se rule case involved (1987). 2704, L S 97 Ed 2d 37 107 Ct designed serve? We conclude that those procedural require- ments are justified and are neither arbitrary nor dispropor- tionate to their intended purposes. legislature has — identified a specific type sexual past behavior of — victim of a alleged sexual crime the disclosure of which may be particularly “degrading embarrassing.” To pro- victim, tect the alleged the legislature has created an elabo- rate and scheme for comprehensive the admission of this type First, of evidence. has legislature decided that reputation. evidence of the opinion alleged sexual past 412(1). behavior inadmissible. OEC totally Second, has decided that legislature evidence of instances of specific the alleged victim’s sexual past behavior be admitted only under narrow very circumstances. it Before can be admitted, the evidence must be carefully “screened” trial court to determine whether it is relevant and whether its probative value its outweighs prejudicial effect. To allow time for this which screening process, must include time for the prosecution to to the respond defendant’s motion and time for the court to conduct hearing, has chosen legislature to set a 15-day pre-trial notice As we have period. explained, this notice also serves the period very important purpose giving to the victim-fair warning as to the scope any into the victim’s inquiry activity.

In creating victim, this scheme to protect legislature did not ignore rights defendant. As Legislative to OEC states: “The rule Commentary balances the interests involved: the interest of the victim of a sexual crime in life from unwarranted protecting private and the public exposure, being defendant’s interest able to a defense present adequately relevant and offering proba- tive evidence.” Legislative to OEC Commentary 1989). (2d reprinted Kirkpatrick, Oregon Evidence 202 ed Moreover, created two legislature exceptions (the of 15 evidence is discov- days’ newly arisen), ered or the issue is which a defen- newly when apply dant cannot for reasons the defendant’s beyond noted, control. As we have earlier in this case asserts no such reasons.

Based on the we conclude that the foregoing analysis, 412 by OEC for the admission of evidence of process required

81 alleged past is of an victim of a sexual crime sexual behavior purposes arbitrary disproportionate it nor neither process 412 is a The established OEC is intended serve. defendant’s exercise of the condition reasonable to justified legitimate present is This condition evidence. avoiding including especially the interests interests, state delay protecting victims of undue Moreover, the rule contains sexual crimes from harassment. excusing noncompliance adequate for in those mechanisms noncompliance in which the occurs reasons situations pre- beyond We the defendant’s control. therefore hold that prior complaining of evidence of the witness’ sexual clusion rights 412 behavior under OEC under the Sixth Amendment. does not violate defendant’s Appeals The of is affirmed. decision the Court judgment of the circuit court is affirmed. dissenting. J.,

UNIS, assigned originally This case was to me. The follow- enough represent ing opinion garner did not votes majority; publish therefore, it, I with minor modifications 93-94, 316 and the addition of footnote Or at as a dissent- ing opinion.1 412,2 if a to offer

Under OEC defendant intends behavior,3 evidence of an proof no shall motion and offer defendant make written day days 15 of trial. OEC later than before the first scheduled 412(3)(a). motion case, defense counsel filed a written this day proof days first seven before the scheduled and offer presented failure whether defense counsel’s trial. The issue satisfy 15-day or to one 412(3)(a) automatically required exceptions preclusion, impose i.e., the severe sanction the trial court to Baker, Or approach Baxter v. 253 this from O’Connell in 1 Iborrow Justice (1969). (O’Connell, J., dissenting), 454 P2d 855 456 451 P2d modified 2 Law,” Oregon’s “Rape ex Although Shield State is called sometimes (Unis, J., 286, 288 (1991), 1, 823 at n 1 Frankel, P2d 394 id. Davey Or n rel infra, range note 8. applies crimes. See dissenting), to a of sex-related that statute 412(4), of this out text in OEC set sexual behavior” defined “Past opinion, at 316 Or 84. preclude from such presenting evidence at his

criminal trial. I would hold that it did not.

After a jury trial, defendant was convicted of rape the first degree, 163.375, ORS sodomy the first degree, ORS 163.405, and sexual abuse in the first degree, ORS 163.427, a child involving under the of 12 age years. Seven days before the scheduled date, defense counsel submit- 412(2) ted a written motion under OEC to offer evidence of the alleged victim’s past sexual behavior. The motion was an offer of accompanied by proof. state moved to strike defendant’s motion on the ground that it was not filed, timely on OEC relying 412(3)(a), which states that the motion shall be made “not later than 15 days” before the scheduled trial date. The trial court granted motion, state’s concluding that, because defendant’s motion was untimely, the court was to exclude required evidence of the victim’s alleged past sexual behavior.

Defendant attempted introduce the same evidence during cross-examination of witnesses, the state’s arguing that OEC 412 does not bar such cross-examination if it is within the of the direct scope examination. Defendant also argued preclusion of evidence as a mandatory sanction for failure to with the notice comply requirement of OEC 412 violates his of confrontation and right his right compulsory I, under Article process section of the Oregon Constitu- tion4 and the Sixth Amendment to the Constitution of the United States.5 The trial court the cross- precluded examination as an of extension its the evidence ruling was inadmissible for failure to with the 15-day of OEC 412. requirement The Court of affirmed Appeals Lajoie, State v. without 105 opinion. Or 804 P2d App (1991). 1230 Because we have not considered previously whether the failure criminal defendant to comply automatically the notice of OEC 412 requires I, Oregon provides part: “In all Article section Constitution ** * prosecutions, right criminal the accused shall meet the witnesses have the face, compulsory process obtaining face to and to have for witnesses in his favor provides in The Sixth Amendment to the Constitution of the United States * * * enjoy part: prosecutions, “In all criminal the accused shall be process against compulsory [and] confronted with the witnesses him to have * * obtaining witnesses in his favor prior evidence of of defense we review. behavior, allowed sexual that OEC argument I defendant’s first consider if it cross-examination to evidence elicited on not apply does Sterling direct examination.6 See scope within (the 611, 614, proper 625 P2d 290 Or Cupp, state reaching the state’s law before analyze tois sequence claims). then federal constitutional 412 provides: “(1) law, in a Notwithstanding any provision other 163.425, in ORS 163.355to for a crime described prosecution crime, such a prosecution attempt in a for an to commit or behavior of evidence of the reputation opinion or crime is not admissible. victim such “(2) law, in a Notwithstanding any provision other 163.425, in ORS 163.355to for crime described prosecution crime, to commit such a prosecution attempt in a for an than reputa- a victim’s sexual behavior other past evidenceof admissible, also unless such or evidence is opinion tion opinion than evidence is: reputation evidence other or “(a) (a) and paragraphs in accordance with Admitted (3) (b) section; this of subsection

“(b) Is evidence that:

“(A) victim; alleged Relates the motive or bias or

“(B) or medi- explain rebut scientific necessary Is or state; by cal evidence offered or “(C) be constitutionally required to Is otherwise admitted.

“(3)(a) committing rape, sod- person If the accused or rape, sodomy sexual omy attempted abuse or sexual this section abuse intends to offer under subsection alleged instances of the specific evidence of behavior, make a written motion the accused shall sexual days date not later than before offer such evidence be offered such evidence is to which the trial which may court allow begin, except that the scheduled to trial, if date, during including made a later motion to be at cross-examination). 611(2) scope (stating See standard the court determines either that the evidence newly discov- ered and could not have been obtained earlier through exercise of diligence due or that the issue to which such evidence relates newly has arisen in the Any case. motion made under this paragraph shall be served on all other parties, and on the victim through the office of the prosecutor. “(b) (a) The motion described in paragraph of this

subsection shall be accompanied by a written offer of proof. If the court determines that the proof offer of contains evidence described in subsection section, of this the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may witnesses, call including alleged victim, and offer relevant evidence. 40.030(2) Notwithstanding ORS 104(2)], [Rule if the rele- vancy of the evidence which the accused seeks to offer in the trial depends upon the fact, fulfillment of a condition of court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, accept shall evi- dence on the issue of whether such condition of fact is fulfilled and shall determine such issue. “(c) If the court determines on the hearing basis of the (b)

described in paragraph of this subsection that the evi- dence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order evidence which may be offered and made specifies court respect areas with which victim be examined or cross- examined. An order admitting evidence under this subsec- tion may appealed be government before trial. “(4) purposes section, For of this ‘past the term behavior’ means sexual behavior other than the sexual behavior with respect to which rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse is alleged.”

Neither party argues the evidence that defen- dant sought introduce in this case under OEC is not evidence of the alleged victim’s “past behavior” within of OEC 412.7 meaning Defendant however, that argues, the notice requirement of OEC 412 cannot be used to limit trial, argument At regard did make that with to some of the proffered evidence; however, pursue argument appeal. he did not within the of direct examina- scope that is cross-examination Reiter, 304, 307, 672 P2d 56 State tion, 65 Or citing App (1983) (“[r]ule its 412 is an rule and does not evidentiary limit a defendant’s to cross-examine terms or purpose witness”). an adverse of OEC 412 no basis for language provides

The that defendant asserts. OEC 412 is a the distinction making of an blanket limitation on the introduction of evidence a victim’s sexual behavior for sexual crime.8 OEC alleged 412(1) past or evidence of the provides “reputation opinion crime sexual behavior of an victim of is past alleged [a sexual] terms, 412 does By distinguish not admissible.” its between evidence of the victim’s sexual behavior alleged past offered on direct examination and such evidence elicited on cross-examination. or evidence is Reputation opinion simply it “not admissible” under OEC of whether regardless offered direct examination or cross-examination. during 412(2) of a

Similarly, OEC that “evidence provides sexual behavior other than or reputation opin- [i.e., ion evidence instances of conduct specific evidence] admissible,” also not three in OEC only exceptions 412(2)(b). Subject require- with the compliance procedural if it 412(3), ments of OEC such evidence is admissible only “(A) victim; to the motive or bias or [r]elates (B) medical necessary to rebut or scientific or explain [i]s (C) state; offered or constitu- [i]s otherwise 412(2)(b).9 to be admitted.” OEC Each of tionally required that could be elicited on those to evidence exceptions applies First, vic- cross-examination. relating tim’s motive or bias could be elicited on cross-examination. Second, evidence to rebut or medical evidence could explain cross-examination; indeed, be elicited on the cross-exam- ination at issue in this case was an to elicit such attempt Third, can demand the evidence. constitutional requirements only prosecution applies for crime in ORS 163.355 to OEC 412 to “a defined 412(1). 163.425, prosecution attempt crime[.]” for an to commit such a crimes, rape, sodomy, and define various sexual such as ORS 163.355 to 163.425 sexual abuse. mutually exceptions exclusive. Evidence admissible under “are not constitutionally required [exceptions] to be admitted.” two also be first (2d 1989). Kirkpatrick, Oregon Evidence 203 ed See evidence on cross-examination. to elicit

opportunity 2d 1105, 39 L Ed 415 US 94 S Ct Davis v. Alaska. (1974) (denial show bias cross-examination Constitution) the United States Amendment violates Sixth ;Delaware 1431, 89 Van Arsdall, 673, 106 US SCt (trial criminal defendant’s court violated L 2d 674 Ed from rights by prohibiting confrontation clause as a witness by prosecution of bias possibility into inquiring the witness’s pending public the state dismissing result of 227, 109 US S Ct Olden v. Kentucky, intoxication charge); (limitation on cross-examination L 2d 513 480, 102 Ed the cohab as to inquiry assault case that prevented sexual at time of party witness with a third itation of complaining confrontation Sixth Amendment violated defendant’s trial rights). 412(3)(a) of OEC

Further, the notice requirement to be elicited sought between evidence no distinction makes to be elicited on evidence sought examination and on direct 412(3)(a) exception OEC provides cross-examination. either “if the court determines requirement from the notice not have been and could evidence is discovered newly that the or that the exercise of due diligence through obtained earlier arisen newly evidence relates has to which such the issue met, the trial court conditions is If either of those the case.” to introduce evidence allow a defendant may under OEC is admissible behavior met. Such was not even though cross- by either be introduced evidence, allowed, may if direct examination byor the state’s witnesses examination of language in the witnesses, nothing own of defendant’s 412(3)(a) otherwise. suggests OEC the trial court describes how 412(3)(c), which

OEC under offered of evidence admissibility determine on cross- evidence offered refers to 412, expressly OEC hearing court, following If the examination. 412(3)(b), determines in OEC chambers described within one relevant, falls to be introduced sought and is more 412(2)(b), stated OEC exceptions of the three shall be “such evidence than unfairly prejudicial, probative made an order the extent in the trial admissible and areas be offered may which court specifies be examined or cross- to which victim respect 412(3)(c) added). Thus, in a examined.” OEC (emphasis paral- that treats the two kinds of examination as subsection 412(3) trial court to lel, prescribe directs the expressly examination, direct elicited, only what evidence maybe on cross-examination as well. but wording purposes sought

Like the as to be served OEC 412 also rebut defendant’s argument of the rule. OEC 412 proper scope recognizes privacy of OEC 412 were and victims. Provisions dignity rape “ ‘to victims of sexual crimes from adopted specifically protect intimate details embarrassing and disclosure of degrading ” Frankel, rel v. Davey lives.’ State ex 312 about their private 286, Or P2d 394 to OEC (quoting Commentary 823 (2d 412, Evidence 202 ed reprinted Kirkpatrick, Oregon 1989)). Another of OEC 412 is “to purpose encourage [avoid victims of sexual misconduct to discouraging] report assist in the of the crime not prosecution only by preventing and thus evidence from highly prejudicial reaching jury but also helping protect jury impartiality, by preventing victims their to the having history exposed from sexual “ Id. at 300 (Unis, J., ‘The public.” dissenting). prospect conduct having past divulged only sexual affects not crime], victim’s decision to but also the report sex vic [the ” Id. willingness tim’s see prosecution through.’ (quot Note, The Constitutionality Statutorily Restricting ing Public to Judicial Access The Case Proceedings: Rape Provision, Shield Closure L Mandatory 66 Boston Univ Rev (1986)). 271, 276 The be the rule served purposes sought are deemed to override whatever relevance the marginal have, victim history might except 412(2)(b), three situations in OEC discussed above. specified 412(3)(a) The notice set forth requirement serves a number of and Graham Wright functions. Professors 412, functions with to FRE shield explain rape those respect statute on which OEC 412 is based:10 requirement essentially

“The notice motion forces the defen- prosecutor dant and the court in advance of trial of to tell 10 (“[t]he Commentary reprinted Kirkpatrick, supra, at 201 See to OEC Evidence”). [OEC 412] rule is based on Rule of the Federal Rules of evidence and to ask that it be

his intention to use certain * ** addition, proof or at trial. an offer of admitted will must attempt prove of what the defendant depiction The parties all know what is at issue. be so that provided to the requirement prevents surprise prosecutor, notice weigh and the court. The can the evidence prosecutor victim admission, object not he will to its and determine whether or truthfulness, legal organize the victim on its confer with * * strategy. it if that is the chosen *This argument oppose automatically.” procedure encourages judges to act less Graham, Wright and 23 Federal Practice and Procedure Just., § L. & Crim. Forcible (quoting Nat. Inst. Enf. (1978)). Legal An Rape: Analysis of Issues statute, shield similar Regarding Michigan’s rape ‘‘ [t]he Court of the United States has stated Supreme statute a valid determination Michigan represents legislative sur heightened protection against victims deserve rape harassment, and invasions of unnecessary privacy. prise, also to the protects against surprise prosecution.” statute Lucas, 1746, 114 L US_, 111 S Ct Michigan (1991). Ed 2d 205 The notice requirement permits prosecu the defendant’s evidence and to prepare tor to investigate Ill at 1746-47. The its admission. S Ct arguments against undue time for the against delay by allowing statute protects admissibility to hold a on the hearing trial court Also, allows the evidence. the proposed whether the trial to determine court, begins, before in OEC within one of the three exceptions evidence falls 412(2) (b) so, if whether value of and, probative effect. As its unfair prejudicial evidence outweighs possible concurring opinion stated in a separate Justice Blackmun Lucas, supra, notice-and-hearing require “a Michigan trial delay by provid to minimize designed ment is specifically rule on the admissibility the trial court an opportunity ing 111 S Ct at in advance of trial.”11 of the evidence proffered in the (Blackmun, J., judgment). concurring — against sur- protection of the purposes None undue harassment, privacy, invasions of unnecessary prise, trial court with an opportunity and delay, providing — evidence proffered admissibility determine 412(3)(c) unfairly prejudicial designed to exclude irrelevant OEC evidence. 412 that ren- an of OEC interpretation would be served from the rule’s procedural dered cross-examination immune those OEC purposes, and limitations. To serve requirements cross-examination, as on sought 412 must apply Because this as to that on direct examination. sought well the statute’s and best language interpretation supported by the notice fulfills the statute’s OEC purposes, including 412(3)(a), evidence that a of OEC requirement applies to offer on direct examination and on defendant intends cross-examination. whether,

I next consider under question a case, record this OEC as manda- requires preclusion sanction. tory 412(3)(a) that, if a defendant intends provides behavior,

to offer evidence of the sexual past “the accused shall make a written motion to offer such shall be accompanied by [which written offer of 412(3)(b)], not later than proof, days before the date on which the trial in which such evidence is to be offered is scheduled to to be followed in chambers begin,” by hearing to discuss the admissibility of the evidence. As previously 412(3)(a) stated, OEC provides 15-day from the exception notice “if the court either that determines evidence is discovered and could not have been newly obtained earlier the exercise of due through diligence or the issue to which such evidence relates has arisen newly in the case.” OEC 412 does not state what sanction expressly is applied for with the notice noncompliance 15-day requirement.

The trial in this case set to originally begin was 29, 1989. It was rescheduled twice at the August request the state, 31,1989. on October Defendant began provided a written motion to offer evidence of the victim’s behavior and an affidavit on October seven before days day Defendant, therefore, first scheduled admittedly trial. failed to meet And, 15-day requirement. although that some of the evidence he argued sought introduce related to a the trial court newly-arisen issue, concluded that the issue was correctly question present from the outset of the case. appeal, argued

At trial and on that manda- tory preclusion of the evidence of the sought right that he sexual behavior to introduce violated his right compulsory process of confrontation and his under Oregon I, 11, Article section of the Constitution Sixth Amendment to the Constitution of the United States. (1982), Mai,

In 269, 277, State v. 294 Or 656 P2d 315 precluding this court considered whether a sanction introducing defendant from evidence for defendant’s viola reciprocal discovery I, tion of statutes violated Article section Oregon specificquestion 11, of the Constitution. The in State supra, Mai, v. was “whether the sanction of ORS upon [was] 135.865 an unconstitutional limitation ’’ testimony right [defendant’s] to obtain the of a witness. process compulsory Or at 273. This court concluded that the Oregon I, 11, clause Article section Constitution “protects right [defendant’s] both the to the attendance of testimony witness,” the witness and the 294 Or at Oregon’s compulsory process and that clause is to be con way Supreme strued in the same that the Court of the United virtually counterpart federal States construed the Washington identical L 2d Texas, v. 388 US 87 S Ct 18 Ed (1967). 294 Or at 272. Washington supra, Supreme Texas, v. Court provisions of the United States held that the of the Sixth compulsory process binding Amendment’s are on the states component as a of the Fourteenth Due Process Amendment’s Clause, 17-19, id. at and struck down a state statute persons charged principals, accomplices, rendered or acces- as incompetent testify sories in the same crime as witnesses By preventing another, for one id. at 23. the defendant from having accomplice’s testimony, the benefit of his the Court arbitrarily right that “the denied him the concluded State * * * testimony put would have on the stand a witness whose * * * been relevant to the defense.” Id. supra, Mai, that “the In State v. this court stated process right compulsory [state] clause fundamental that the right protect present defense, the aims to is ‘the present facts as well as the the defendant’s version of the jury prosecution’s truth to the so it decide where the ” Texas, Washington supra, at 274 (quoting lies.’ 294 Or 19).12 Mai, In State v. supra, this court said: 388 US at denying imposition no of the “There can be being in may result the defendant’s preclusion sanction testimony might be relevant unable to call witnesses whose ** * sanction Therefore, exculpatory. [preclusion] and sanction would only be no lesser imposed should accomplish when statute, only the aim the and then the state if or witnesses werepermit- would be the witness prejudiced if the statute had not been testify though complied ted to even added). with.” Id. at 277 (emphasis

This court concluded: that the not preclusion

“We hold sanction ORS 135.865 is I, 11, Oregon with Article of the inconsistent section Consti- that the court that the provided prosecution tution, finds prejudiced by comply defendant’s failure statutes, further, that it reciprocal discovery provided effectively that no sanction short will appears 12 284, 302, 1038, Mississippi, L Ed In Chambers v. 410 US 93 S Ct 35 2d 297 (1973), hearsay ground Supreme that it Court invalidated a state’s rule on the abridged right “present witnesses in his own the defendant’s defense.” i.e., mechanistically, cannot be made it determination to exclude defense evidence only fact-specific weighing competing govern a must be made after careful analysis ment and individual defendant’s interests. Id. The Court chose to rest its trial, right finding process a defendant’s Fourteenth Amendment due to fair but prior process rights defendant’s due to have been violated relied on its construction compulsory process. rights “Few of the Sixth Amendment to confrontation and Court, present rights,” said the “are more fundamental than that of an accused to Texas, (citing, e.g., Washington 388 witnesses in his own defense.” Id. at 302 v. US (1967)). 14, 19, 1920, 18 L Ed 2d 87 S Ct 1019 Arkansas, 44, 2704, (1987), In Ct 97 L Ed 2d 37 Rock v. 483 US 107 S that, present Supreme although right Court stated of a criminal defendant “to * * limitation,” apply testimony relevant is not without id. at “aState* stand, arbitrarily permits take the but excludes rule of evidence that a witness to Arkansas, testimony.” portions that a material of his Id. In Rock v. the Court held right testify may by per criminal constitutional not be barred se rule defendant’s testimony, testimony against hypnotically-refreshed but such must be evaluated for reliability in at each case. Id. 62. Illinois, 400, 411, 108 646, 98 Taylor L Ed 2d 798 v. 484 US S Ct See also (“[t]he compulsory process designed itself to vindicate the defendant’s justice judgments principle if were to be that the ‘ends of criminal would be defeated ”) (quoting partial speculative presentation United of the facts’ founded on a (1974)). 683, 709, Nixon, 41 L Ed 2d 1039 v. 418 US 94 S Ct States suggests failure to Nothing in case that defense counsel’s the record this or was was the result of “willful misconduct” with the notice designed advantage.” a “tactical to obtain lack compliance which prejudice avoid the defendant’s added).13 (emphasis Id. at 280 created.” (1990), P2d Or Ben, State offenses. of various criminal convicted defendant was 135.873, Ore- 135.585 to ORS violated ORS Defense counsel statutes, when he failed to disclose discovery gon’s reciprocal of the morning witnesses until the defense the names of two to the witnesses not to speak he instructed trial and when noncom- As a sanction for unless he was present. prosecutor statutes, the trial court imposed discovery with the pliance — made avail- a sanction expressly sanction the preclusion — refused to allow the the statute14 the court able to the record witnesses. N othing two defense testimony the state had fact occurred. indicated prejudice it did not Ben, Or at 318. Additionally, State v. supra, trial court made no record, pertinent and the from the appear effectively preclusion sanction short of that no findings, the defense counsel’s the that have avoided prejudice would Id. statute created.15 discovery with the lack of compliance that and held the defendant’s convictions reversed This court and sanction the preclusion erred imposing the trial court may only pre- a new trial. “Courts error required that that “when to do so said, this court testimony,” clude [defense] 13 (1982), 277-78, upheld Mai, 269, P2d 315 this court 656 In State v. 294 Or as the witness list counsel refused to disclose preclusion where defense of witnesses recess, statute, and, granted discovery trial court by reciprocal after the required the during place were to have taken of a witness that blocked interviews defense counsel recess. 14 309, Ben, Mai, Or 135.865, supra, v. 310 and State at issue State v. ORS (1990), provided: P2d 650 798 provisions duty imposed of any the “Upon being apprised breach of the of permit violating party 135.873, order the the court ORS 135.805 to continuance, permit material, the grant refuse to a or inspection the or of disclosed, or testify, in evidence the material refuse to receive

witness to appropriate.” as it considers enter such other order sanction, yet this court Thus, preclusion and specifically as authorized the statute only circum- under certain was constitutional sanction held that stances. 319, Ben, supra, stated: Or at this court In State v. Illinois, Taylor 484 US Supreme v. Court observed “[A]s the United States 1283, 99 983, 108 L 646, 98 S Ct 400, 418, 108 den 485 US L Ed 2d reh S Ct effectively, adversary process (1988), to function in order for Ed 2d 494 discovery responding and the client attorney speak the client when must trial, consequences accept must, purposes of that for the at least attorney’s decisions.” discovery purpose statute and other achieves of (emphasis party prejudiced.” [state] Id. has been at 316-17 added). error, held, court’s this court The effect the trial * * * Erroneously pre- deny trial. defendant a fair “was to offering venting both and circumstan- defendant from direct supporting facts at the tial evidence his version struck [defense].” Id. at 319. heart of his Burdge, n P2d 1076 8, 664 v. 295 Or State processes

(1983), this court stated that “when our state right the conflict with a fundamental federal constitutional yield” (citing Washington process Texas, v. must state supra). Burdge, supra, this that In State v. court held exclu testimony in sion a defense witness’s a criminal case as a impermissible was where a witness sanction defense violated stipulation of counsel exclude or OEC 615 that witnesses governs exclusion witnesses from the courtroom. This [defense] [in “exclusion of a witness court reasoned grave case] criminal is too a sanction where the violation was procured not intentional and not the connivance of counsel ” improper (adopting motive, or for 295 Or at 14 reason some (7th Cir), ing Schaefer, in United States v. 299 F2d 625 cert (1962)), “[r]efusal den US 917 and to allow defense testify for witnesses to violation of necessary exclusion order should only preserve integrity imposed be when fact-finding process requires competing closely (citing Berger examined,” id. v. interests be Califor (1969)). nia, 314, 315, 21 L Ct Ed 2d 508 393 US 89 S Burdge, supra, supra, Mai, v. State v. State State although supra,16 Ben, that, there make it clear are Mai, present supra, by opinion authored a member of the State v. was an Lent, by present majority joined justice majority. Justice and one other in the Chief joined Linde, they imposition by would have held that Justice dissented because preclusion against for with the the sanction a criminal defendant a failure to reciprocal discovery with basic constitutional statutes is inconsistent our most principles: Oregon agree majority the 11 of Article I of the State “I that Section only process guarantees right have to defendant not the to

Constitution to a testify. I must compel dissent, to attend his trial but the to have them witnesses however, preclude holding legislature majority’s the that can a from the testifying did not from because defendant’s counsel allow defendant’s witness Mai, (Lent, J., dissenting). discovery.” supra, v. 294 Or at 280 C. State (1983), 1, 664 six-justice opinion, Burdge, was aunanimous State 295 Or P2d 1076 v. Ben, present majority. supra, joined by v. was a unanimous members of the State two be the sanction preclusion in which instances preclusion not the impose trial courts are employed,17 mecha- in a criminal case defendant sanction against that this safeguards the standards or Because nistically. in OEC cases are not provided in those court required present years ago, the author of the opinion by than three authored this court less majority present and the two joined by of the majority two other members and joining justices this dissent in this case. Indeed, holdings based on majority own in these three cases. fails to heed its The Ben, majority Burdge in this case ignoring and State v. the State v. State v. Mai and as preclusion is unconstitutional providing for of evidence that “a statute states employs preclusion sanction when a less drastic only the applied if a trial court added). (emphasis preclusion.” purpose 316 Or at 74 as will serve the same sanction Thus, when a majority, is unconstitutional according because to the even preclusion, purpose a statute which does the as will serve same less drastic sanction jeopardy. Faced with a constitutional provide is in for less drastic sanctions not challenge (1) saving statute, to find a alternatives are either this court’s to such sanctions, thereby construing provide for less drastic of the statute to construction (2) constitutional, or the statute way declare in a that makes it the statute Instead, majority’s approach drastic to consider less unconstitutional. and, concluding that those “arguably in the statute available” sanctions available fully,” purposes statute] “accomplish [of all three sanctions do conclude, therefore, Surely 316 Or at 76. is constitutional. that the statute purpose a statute really legislature can select a for majority that the does not mean purpose then, facto, any legislature to achieve that ipso sanction that the selects and provide severe legislature also for a less if did not see fit to is constitutional Yet, majority’s approach purpose. fully that is the that achieves the same sanction this case. appropriate issuing majority would not be that a continuance determines * ** delay aggravate would defeat the and “would because a continuance result anxiety.” If 316 Or at 76. that protecting alleged from needless purpose victim protecting purpose true, already prosecution “defeated] the had already anxiety,” been rescheduled twice the trial had because victim from needless state, conveniently overlooked a fact request 316 Or at at the majority. purpose, significance but it must be of that minimize the I not intend to do which, as a conjunction rights interests at stake and with other considered basis, majority matter, purpose be the as the cannot means that this constitutional 15-day violating holds, mechanistically applying preclusion for as sanction requirement. that, argues “[i]n in his brief interesting to note that It is also case, claim of noted that there is no considering preclusion of this it is in the context victim, no effort to the prejudice, of additional embarrassment no claim by methods purposes could be vindicated of the statute whether the to determine “prejudice to the response in its brief is preclusion.” The state’s than other rule,” attempt argue with no the notice prosecution in violation of is inherent prejudice. there was actual (1991), 1743, 114 US_, Lucas, L Ed 2d 205 111 S Ct Michigan v. case, Supreme presented in this of the situation which involved the converse preclusion would not instances also stated that some the United States Court of holding Taylor acknowledged its constitution. The Court violate the federal ‘adequate appro- Illinois, however, would be supra, sanctions that “alternative of automatic preclusion 412 to require OEC interpreting coun- the defense criminal trial for from a defense requirement the notice 15-day with comply failure to sel’s I, 11, Oregon of the Article section violate would Constitution. if so 412, OEC possible, is to construe

Our obligation is to construe constitution, i.e., obligation our the as to satisfy the admission a manner that protects if 412, OEC possible, ‘‘ that [t]his evidence.18 We note constitutionally-mandated to be that statutes are to the proposition court is committed no other constitution unless satisfy as to construed so Mills, 447, Roberts v. 441, 290 Or is possible.” construction (1981). v. Edgmand, also State 306 Or See 622 P2d 1094 (1988) (court the legislature’s is to preserve 761 P2d 505 can be con- to the extent that the statute intended purpose constitutional problems). strued to avoid articu- that this court safeguards The standards or Mai, v. State Burdge, supra, v. State supra, State lated Ben, constitutionally the framework for a v. supra, provide framework, 412. that of OEC Applying construction saving to defense preclude 412 to courts permit we construe OEC counsel for failure of defense in a criminal case 412(3)(a) only in OEC the notice requirement statute, of the achieves the purposes when to do so and no sanction to the prosecution, is prejudicial violation prejudice will avoid effectively short of preclusion neces- violation, or to do so is created prosecution factfindingprocess.19 of the integrity sary preserve ” Taylor Lucas, supra, v. (quoting Michigan v. 111 S Ct at 1748 priate in most cases.’ 413). Illinois, Lacas, Supreme that a rule supra, determined US In Court at hearing requirement violating preclusion a notice and defense evidence for atoo-rigid application perse was Michigan rape law was unconstitutional shield Id. at 1748. Here of the United States. Amendment to the Constitution of the Sixth per preclusion defense evidence is whether confronted with the issue of we are not mandatory unconstitutional, noncom- preclusion for counsel’s whether is se but 412(3)(c) requirements. pliance with notice OEC admissibility course, of evidence provision for the 412 includes a Of OEC 412(2)(b)(C), admitted,” constitutionally required be “[i]s otherwise which 15-day statutory procedure unless provision not considered under this but 412(3)(a) complied with. is first findings Illinois, supra, trial court’s Taylor at based on the 484 US and was discovery “willful misconduct” violation amounted that the defendant’s whether under this rule determination based on analysis be made on a case-specific must justified case, and should be supported pertinent the facts of the will judicial inquiry nature The basic findings. follow, to the extent under possible the court to require the same circumstances,20 sequential steps essentially under OEC determining admissibility it should follow for are judicial inquiry of that steps 412.21 The sequential described below. that, because court in this case ruled

The trial with the notice 15-day failed to comply defense counsel 412(3)(a) the satisfy and failed to one of of OEC requirement 412(3) (a) in OEC requirement the notice 15-day exceptions (which correct), of preclusion was we have determined conduct victim’s of the defense evidence that the absence of prejudice and automatically required, was contrary interpretation to the ruling irrelevant. That was erro- I above. Because that 412 that have stated of OEC necessary did not make the the trial court ruling, neous within the special and pertinent findings judicial inquiry 412(3), in within framework, as set forth OEC procedural of the alleged the of evidence admissibility which must be determined. sexual conduct prior advantage,” Supreme determined that Court designed to obtain a “tactical by a prejudice prosecution could have been avoided” “[r]egardless to the of whether appropriate” did not sanction, [(preclusion) was] and sanction “the severest lesser Compulsory Process Clause. violate the requirement in comply OEC with the notice The defendant’s failure 412(3)(a) admissibility against adequately arguing may prevent the state from event, preclusion to be an if is deemed not proffered In that and evidence. admissibility sanction, final determination on appropriate made at a later time. 412 will need to be under OEC prof court, sequential steps, that the following determines those If the in the notice irrelevant OEC it is not admissible under fered evidence is manner will result Following procedure in this requirement was not followed. would be admissible many whether the evidence instances of a determination inef thereby preventing post-conviction claims for statutory guidelines, under the precluded for was in which the evidence counsel in cases of trial fective assistance not admissible requirement the evidence was where the notice with failure requirement. complied with that had defendant the statute even under state and its benefit of the course, is for the notice becausé the Of objection may result of the defendant’s witnesses, any it have as a can waive the state requirement. noncompliance with the would, therefore, I vacate the decision of the Court of I Appeals judgment court. would remand the trial court case to further proceedings 412(3), Under the trial instructions. OEC court first would determine the of defense counsel’s offer of sufficiency proof, i.e., whether the offer contains evidence that falls proof 412(2)(b). within one of the three stated in OEC exceptions 412(3) (b). If the offer of to be proof determined sufficient, the trial court then would hearing order a chambers,22 at which the admissibility of the evidence would be decided in accordance with the procedure set forth in OEC 412(3)(b) (c). If the trial determined, court on the basis of that the hearing, evidence that defense counsel sought relevant,' offer is it falls within one of the three excep- tions 412(2)(b), stated OEC and that the value of probative such evidence outweighs danger unfair prejudice,23 then the evidence offered defense counsel under OEC 412(2)(b) would “be admissible in the trial to the extent an order the court specifies evidence which be offered and may areas with to which respect victim be exam- ined or cross-examined,” 412(3)(c), unless the trial court, record, based on the facts of found that was permissible under the rule stated above. remand,

After this if trial following procedure court determined that the evidence was excluded or properly that preclusion was the trial court be justified, should instructed to reinstate the of conviction. If the trial judgment court determined that the evidence was not excluded properly and that was impermissible, the trial court would need to determine whether failure to admit the evidence was If harmless error.24 the trial court determined that the error Frankel, Davey supra, ex rel meaning See State v. (defining 312 Or at 294 phrase only hearing “in chambers” within the context of OEC 412 to mean that the office). place judge’s must in the take balancing required Unlike the under OEC where the evidence is admis 412(3)(c) worth, prejudice substantially outweighs probative sible unless is cast in favor of exclusion. against notwithstanding may “[A] verdict a criminal defendant be affirmed right’ if did error the error not affect a ‘substantial of the defendant. OEC 103(1). interpreted This court has this to mean that the verdict be affirmed if Isom, there is ‘little likelihood’ that the error affected the verdict.” State v. 306 Or Hansen, (citing State 587, 595-96, 761 169, 180-81, 743 P2d 524 P2d 304 Or Williams, (1987))'; J., 19, 56, 828 (Unis, see also State v. 313 Or P2d 1006 be instructed to reinstate trial court should harmless, was did not deter- If the trial court of conviction. the judgment defendant would be enti- harmless, was mine that the error would of conviction judgment a new trial and tled to remain vacated. avoid the violation of would

Following procedure this caused by provisions the state and federal constitutional both the statutory Strict application se rule of preclusion. per court’s violates this rule, majority, only required by as constitution, but also violates and this state’s precedents 90-96, and accom- 316 Or at supra, federal constitution. See footnotes. panying of Appeals, the decision of the Court

I would reverse remand this case court, the circuit vacate the judgment dissent. I respectfully circuit court with instructions. to the dissent- JJ., this Fadeley, join Van Hoomissen and ing opinion. analysis), Oregon’s harmless error dissenting) (describing basis for constitutional 223, 230-31, (describing Walton, constitu- 809 P2d 81 311 Or and State v. contrasting rule under federal Oregon’s rule and harmless error

tional basis for constitution).

Case Details

Case Name: State v. Lajoie

Court Name: Oregon Supreme Court

Date Published: Apr 15, 1993

Citation: 849 P.2d 479

Docket Number: CC 10-88-08977; CA A63706; SC S37935

Court Abbreviation: Or.