Michigan v. Lucas/Concurrence Blackmun

by Harry Blackmun

Justice BLACKMUN, concurring in the judgment.

I concur in the judgment. I write separately because I was among those who dissented in Taylor v. Illinois, 484 U.S. 400 , 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), where the Court's majority rejected the argument that the Sixth Amendment prohibits the preclusion of otherwise admissible evidence as a sanction for the violation of a reciprocal-discovery rule.

In a separate dissent in Taylor, id., at 438, 108 S.Ct., at 667-68, I specifically reserved judgment on the type of question presented in this case—whether preclusion might be a permissible sanction for noncompliance with a rule designed for a specific kind of evidence—based on my belief that the rule may embody legitimate state interests that differ substantially from the truth-seeking interest underlying a reciprocal-discovery rule. In my view, if the sanction of preclusion can be implemented to further those interests without unduly distorting the truth-seeking process, the Sixth Amendment does not prohibit the sanction's use.

The notice-and-hearing requirement adopted by the State of Michigan represents, as respondent Lucas does not deny, "a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy." Ante, at 150. In addition, a notice-and-hearing requirement is specifically designed to minimize trial delay by providing the trial court an opportunity to rule on the admissibility of the proffered evidence in advance of trial. Finally, as with a notice-of-alibi rule, the notice requirement in this Michigan statute represents a legislative attempt to identify a kind of evidence—evidence of past sexual conduct—with respect to which credibility determinations are likely to be dispositive, and to permit (or perhaps compel) the defendant and the State to gather and preserve evidence and testimony soon after the alleged offense, when memories of witnesses are fresh and vivid. It seems clear that these interests, unlike the State's interest in truthseeking, may in some cases be advanced by imposition of the sanction of preclusion, and that the sanction therefore would not constitute an arbitrary response to the failure to comply. See Rock v. Arkansas, 483 U.S. 44 , 56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987).

Of course, the State's interest in the full and truthful disclosure of critical facts remains of paramount concern in the criminal-trial process, and it may be that, in most cases, preclusion will be "disproportionate to the purposes [the rule is] designed to serve." Ibid. Nonetheless, I agree with the Court that failure to comply with the notice-and-hearing requirement of Michigan's rape-shield statute "may in some cases justify even the severe sanction of preclusion." Ante, at 153.