Sorry for the delay in posting. Little hectic. It was nice saying hello to many of you at CDAM in Novi a couple weeks ago.
Jordan v. Warden, Lebanon Correctional Institution, No. 10-3064 (6th Cir. Mar. 27, 2012) (for publication).
Panel of Judges Gilman, Rogers, and Stranch.
District court denied the petitioner's application for habeas relief (he had been convicted in Ohio court of rape and unlawful sexual conduct with a minor; eight-year sentence).
Issue: did the state trial ct violate the petitioner's Sixth Amendment rights to present a defense and confront witnesses by improperly applying Ohio's rape-shield law.
The COA affirmed the dist ct's denial of habeas relief.
Petitioner claimed he never had sex with the alleged victim. On direct examination, the alleged victim claimed the petitioner raped her, and that it was her first experience with sex. Defense counsel did not inquire into that latter assertion on direct examination.
A friend of the alleged victim testified. On cross-examination, defense counsel asked if the alleged victim had ever confided in the friend--witness that the alleged victim was having sex with people. The friend--witness said yes, the alleged victim had so confided. The prosecutor objected, arguing the rape-shield rules applied.
During the bench conference on the issue, the defense stated it was not trying to get into prior sexual conduct; it was a matter of credibility. The alleged victim had testified that it was her first sexual encounter, so the information on prior encounters went to credibility. The trial court sustained the objection.
Petitioner appealed to the Ohio appellate court. Argued he should have been allowed to present the evidence of the alleged victim's sexual history. Argued that the state had waived the rape-shield protections by choosing to introduce evidence regarding the alleged victim's lack of past sexual activity. The Ohio appellate court found that the doctrine of waiver did not apply in the situation. It rejected the merits of the petitioner's argument.
The petitioner never tried to cross-examine the alleged victim on the point at issue. So he cannot argue a confrontation-clause error to seek habeas relief. The defense also did not object on rape-shield grounds to the state's questioning of the alleged victim regarding her alleged lack of sexual history. The petitioner waived his challenge to the scope of cross-examination of the alleged victim.
In terms of the cross-examination of the alleged victim's friend, trial judges have wide latitude to impose reasonable limits on cross-examination. Rape-shield laws impose such a limit. B/c the U.S. Supreme Court has not ruled explicitly on the issue of waiver in the rape-shield context, and b/c of the broad latitude the trial ct has on evidentiary issues, the Ohio COA's decision on waiver was not contrary to or an unreasonable application of federal law.
In terms of the substance of that cross-examination, only cross-examination seeking evidence of bias or other motivations for a witness's testimony is constitutionally protected. The Supreme Court has not suggested that the Constitution always confers a right to impeach the general credibility of a witness. The Supreme Court has also not recognized a right under the Confrontation Clause to impeach adverse witnesses by putting on a third-party witness.
The state argued that its questioning about the alleged victim's lack of sexual history did not fall under the rape-shield bar. While questioning "the soundness of this argument," the COA (6th Cir) did not address the scope of the rape-shield law. Rather, the COA concluded that the trial court did not err in applying the rape-shield law, even if the state's questioning about the alleged victim's lack of sexual history should have been excluded. The defense had not objected during that questioning. The state, on the other hand, did object during the defense's cross-examination of the alleged victim's friend.
No confrontation-clause errors based on the limitations the Ohio trial ct placed on the defense's cross-examination of the alleged victim's friend. Even if there had been error, it would not lead to relief b/c it would be harmless. The alleged victim's sexual history was a collateral topic and not relevant to the central issues at trial.
