Harry Blackmun

“ In this case, I am not at all sure that the Michigan Court of Appeals adopted the "per se " rule that this Court describes in its opinion. See ante, at 146, 149, 151, 152. In its per curiam, the state court never uses the word "per se," never mentions the Federal Constitution, [1] and indeed, never cites any federal cases. Rather, the Michigan Court of Appeals simply holds that the trial court's preclusion of potentially relevant evidence in reliance on an unconstitutional notice provision in a limited class of rape cases requires a new trial. ”

“ Other States and the Federal Government simply require that notice be filed at various times before the start of the trial. Ibid.; see Brief for Respondent 29, and n. 24.
Although the Court of Appeals does not explicitly rely on the unduly strict time period ("10 days after arraignment ") provided by the statute, it does hold that "the ten-day notice provision" is unconstitutional when used to preclude testimony of a victim's past sexual relationship with the defendant. ”

“ The reasons for restricting the use of the exclusion sanction to only the most extreme situations are even more compelling in the case of criminal defendants, where due process requires that a defendant be permitted to offer testimony of witnesses in his defense. ”