Lonnie K. Stephens v. Charles B. Miller, Warden, and Attorney General of the State of Indiana

FLAUM, Circuit Judge,

concurring.

This case forces us to confront the extreme tension if not the outright conflict between a criminal defendant’s constitutional right to present evidence in his own defense1 and a state’s “sovereign prerogative” to regulate the presentation of evidence in its courts. See Cunningham v. Peters, 941 F.2d 535, 538 (7th Cir.1991), cert. denied, — U.S. -, *1004112 S.Ct. 1484, 117 L.Ed.2d 626 (1992) (quoting Johnson v. Chrans, 844 F.2d 482, 484 (7th Cir.), cert. denied, 488 U.S. 835, 109 S.Ct. 95, 102 L.Ed.2d 71 (1988)). Though the right to present relevant testimony in one’s own behalf is of constitutional dimension, it is not without limitation2 and “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock, 483 U.S. at 55, 107 S.Ct. at 2711 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973)). The difficult question that we must resolve today is whether the Indiana rape shield statute curbs Stephens’ ability to present arguably relevant evidence.

The Indiana rape shield statute undoubtedly advances important state interests, including (1) the protection of rape victims from public embarrassment and humiliation through exposure of their past sexual conduct, (2) the focusing of the fact-finder’s attention on the defendant’s alleged actions and away from marginally relevant collateral issues, and (3) the encouragement of rape reporting by victims. Further, this court has upheld the facial validity of the Indiana rape shield statute, see Moore v. Duckworth, 687 F.2d 1063 (7th Cir.1983), and although the Supreme Court has not yet confronted this question squarely, the Court has issued strong dicta indicating that rape shield statutes probably would survive facial challenges. See Michigan v. Lucas, 500 U.S. 145, -, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991) (holding that preclusion of evidence of defendant’s own past sexual conduct with the victim, because of defendant’s failure to comply with notice-and-hearing requirements of Michigan’s rape shield statute, was not a per se violation of the Sixth Amendment). In Lucas, the Court noted that Michigan’s rape shield statute “represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.” Id. 500 U.S. at -, 111 S.Ct. at 1746 (majority opinion); see also id. 500 U.S. at -, 111 S.Ct. at 1749 (Blackmun, J., concurring).

While I believe that the relevant Supreme Court and Seventh Circuit precedents indicate that the typical rape shield statute should survive facial attack, in this case we must consider whether it is constitutionally permissible to apply the Indiana rape shield statute to preclude a defendant from giving a full exposition of his version of the events surrounding the crime of which he was accused. See, e.g., Tague v. Richards, 3 F.3d 1133, 1137 (7th Cir.1993); Sandoval v. Acevedo, 996 F.2d 145, 149 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 307, 126 L.Ed.2d 255 (1993). On several occasions, the Court has endorsed a balancing test for resolving conflicts between the government’s interest in maintaining its evidentiary rules and the accused’s interest in presenting relevant evidence in his defense. See, e.g., Rock, 483 U.S. at 55, 107 S.Ct. at 2711; Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); Chambers, 410 U.S. at 295, 93 S.Ct. at 1045; Johnson, 844 F.2d at 484. As Judge Cudahy points out, “our efforts at striking this balance should be sensitive to the guidance that Supreme Court precedent provides.” Post, at 1012 (Cudahy, J., dissenting). Unfortunately, when one examines the relevant Supreme Court authority mandating a balancing test, one must conclude that the Court has yet to formulate a clear standard for determining when a governmental interest is sufficiently important to outweigh the accused’s interest in presenting relevant testimony. See Joan L. Larsen, Comment “Of Propensity, Prejudice, and Plain Meaning: The Accused’s Use of Exculpatory Specific Acts Evidence and the Need to Amend Rule 404(b),” 87 Nw. U.L.Rev. 651, 675-676 (1993). Hence, we must infer an approach that appropriately balances the competing interests at stake in this case.

Recognizing the absence of a well-defined standard, I believe that the Court’s recent cases involving rape shield statutes and analogous areas of Sixth Amendment jurisprudence incline toward a contraction of the unfettered right to present evidence and the closely related right of confrontation. In *1005Lucas, the Court noted that the operation of a procedural provision of Michigan’s rape shield statute to exclude the presentation of relevant evidence is not necessarily unconstitutional even though it in effect diminishes the defendant’s ability to confront adverse witnesses and present a defense. See 500 U.S. at —, 111 S.Ct. at 1746. While the Court long has recognized that Sixth Amendment rights “must be interpreted in the context of the necessities of trial and the adversary process,” Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 3166, 111 L.Ed.2d 666 (1990) (listing eases in which states’ interests in orderly trial procedures did not violate defendants’ Sixth Amendment rights), the Court only recently has relied on articulated state interests external to the trial process to uphold a limitation on the scope of a defendant’s presentation of evidence at trial. In Craig, a sharply divided Court held that the Confrontation Clause of the Sixth Amendment did not categorically prohibit a child witness in a child 'abuse case from testifying outside the defendant’s physical presence by one-way closed circuit television.3 Id. at 853, 110 S.Ct. at 3167. Craig directs us to continue applying a ease-specific balancing test, and it indicates that policy interests external to the trial process, such as those embodied by rape shield statutes, may outweigh, in some select and limited cases, a defendant’s completely unfettered Sixth Amendment rights.4

Whether a state interest can justify a limitation upon a defendant’s right to present relevant evidence depends upon the relative weights of the interest and the evidence. A state may not “mechanistically” apply its evi-dentiary rules to deprive the defendant of a fair trial, and “critical” evidence may not be excluded. Chambers, 410 U.S. at 302, 93 S.Ct. at 1049. As the Court stated in United States v. Valenzuela-Bemal, evidence is “critical” if it is “relevant and material, and ... vital to the defense” to a degree sufficient to establish that the exclusion of the evidence could have “affected the outcome of the trial.” 458 U.S. 858, 867-868, 102 S.Ct. 3440, 3446-3447, 73 L.Ed.2d 1193 (1982) (citations omitted) (emphasis in original); see also Sharlow v. Israel, 761 F.2d 373, 377-378 (7th Cir.1985), cert. denied, 475 U.S. 1022, 106 S.Ct. 1212, 89 L.Ed.2d 324 (1986) (holding that state evidentiary rule (hearsay) was not “mechanistically” applied because the testimony excluded was not “critical” to the defense). More recently, the Court has indicated that state restrictions on an accused’s right to present a defense “may not be arbitrary or disproportionate to the purposes they are designed to serve.” Lucas, 500 U.S. at -, 111 S.Ct. at 1747 (citing Rock, 483 U.S. at 56, 107 S.Ct. at 2711). In my judgment the application of the rape shield statute in this case neither likely affected the *1006outcome of the trial nor could fairly be la-belled arbitrary or disproportionate to the purposes of the statute in light of the High Court’s recent decisions.

There can be no real question that Stephens’ proposed testimony about the reputation and past sexual practices of the victim is of the kind that rape shield statutes are designed to exclude. Neither can there be any doubt that the proposed testimony in this case was linked to Stephens’ effort to challenge the complainant’s credibility, an inquiry to which he was constitutionally entitled. But while the opportunity for such an attack may not be denied him in toto, it is clear to me that after Craig and Lucas the State may in limited circumstances regulate the breadth of the assault. From this I must conclude that rape shield laws in particular now carry an implied judicial imprimatur of approval and undoubtedly represent a pivotal legislatively-driven circumscription of a criminal defendant’s right to muster relevant evidence for his cause.

Nonetheless, if constitutional jurisprudence has crossed this legal rubicon, it must settle at a principled resting place. That is, once it is acknowledged that a defendant’s right to tell his story is not boundless, one is compelled to seek the broad and elemental contours of this right that are inviolate. As an initial matter, it is apparent that a defendant cannot be denied the opportunity to elicit the core of operative facts that comprise his theory of defense. In a rape case, where the defendant asserts the defense of consent, this essential center certainly would include both the facts that arguably manifest consent and those that diminish the credibility of inculpatory evidence accumulated against the defendant. More, germane to this case, but related in principle, is the notion that a defendant’s opportunity to develop not only the rudiments but also the details of his story cannot be so cramped as to leave his defense drained of its effectiveness. Ascertaining which details are essential in a particular case admittedly may be an exacting and imprecise examination. However, until we are benefitted by further teachings of the Supreme Court, I conclude that this is the inquiry that should be conducted.

In this case, I cannot adopt the majority’s characterization that the application of the rape shield statute constitutes a “very minor imposition on Stephens’ right to testify.” Ante at 1002. Nevertheless, I accept that Stephens’ testimony was appropriately ex-cludable because the testimony was not sufficiently central to his defense to outweigh the interests served by the statute. First, I do not find this case akin to Chambers, where the Court invalidated a hearsay rule that barred the defendant from introducing evidence that, if believed, necessarily would have exculpated the defendant.5 Here the excluded evidence could have been the basis of an inference helpful to Stephens’ defense, but it was not shown to be connected to the issue of guilt or innocence to a degree sufficient to establish that its exclusion impacted Stephens’ ability to set out his version of events and thus affected the outcome of the trial. Second, Stephens was able to impeach the complainant’s credibility with the suggestion that she may have been angry with him, although not in the detail he would have liked. Furthermore, in my opinion this loss of detail did not constrict significantly the vitality of Stephens’ defense. Even if believed, the proposed testimony, while relevant to witness bias, is hardly of the sort that would constitute persuasive evidence that the complainant concocted her story. Any link between Stephens’ comments and a decision by the complainant to fabricate a charge of rape was merely conjectural. In this regard, I find it noteworthy that Stephens did not attempt to lessen the potential impact of the loss of the excluded testimony by proffering modified versions of the controversial comments. Such an effort would have given meaningful support to the proposition that the precluded comments were vital to his defense. The decision to rest on the possible error of the trial judge does not suggest intense concern over the significance of the testimony.

*1007In the final analysis, after reviewing the direction given by the statute and contemporary case law, and under the specific circumstances of this case, I am constrained to concur in the decision to affirm the district court and cabin any inclination to chart another constitutional course.

. In Rock v. Arkansas, the Supreme Court explained that "[t]he right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution.” 483 U.S. 44, 51, 107 S.Ct. 2704, 2708 (1987). The right to testify is a "necessary ingredient" of the Due Process Clause of the Fourteenth Amendment, a "necessary corollary" to the Fifth Amendment's guarantee against compelled testimony, and also is found in the Compulsory Process Clause of the Sixth Amendment. Id. at 51-53, 107 S.Ct. at 2708-2710.

. But see infra note 3 and accompanying text discussing the dissenting opinion of Justice Scalia, joined by Justices Brennan, Marshall, and Stevens, in Maryland v. Craig, 497 U.S. 836, 860, 110 S.Ct. 3157, 3171, 111 L.Ed.2d 666 (1990).

. Justice Scalia, joined by Justices Brennan, Marshall, and Stevens, wrote a strong dissent in Craig that began as follows:

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant’s right to face his or her accusers in court.

497 U.S. at 860-861, 110 S.Ct. at 3171 (Scalia, J., dissenting). Justice Scalia’s textual approach has considerable force and obviously would eliminate the difficulty of applying the murky balancing test we now must employ to resolve conflicts between a defendant's rights to testify and to cross-examine witnesses and the various state statutes that restrict these rights. But ours is a hierarchical judiciary, and Justice Scalia’s view, whatever its appeal, has not prevailed. Thus, until we receive further guidance from the Court, we must endeavor to define and apply a standard that balances the competing interests.

. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Court balanced a criminal defendant's right to cross-examine adverse witnesses against a státe interest external to the trial process — namely, preserving the anonymity of juvenile offenders. The Davis Court resolved the balancing of interests in favor of the defendant’s right to cross-examine. The case at bar is similar to both Davis and Craig in that the statutes in all three cases sought to shelter persons whom the legislature deemed particularly vulnerable (rape victims, juvenile offenders, and child abuse victims) from further trauma and embarrassment. However, this case and Craig present an additional important state interest— the reporting and prosecution of sex offenses — not found in Davis.

. In Chambers, the excluded evidence consisted of a confession by another person to the murder for which the defendant was tried. This evidence was patently critical, and therefore could not be excluded.