                                                                                         Michigan Supreme Court
                                                                                               Lansing, Michigan
                                                                 Chief Justice:            Justices:



Syllabus                                                         Robert P. Young, Jr.      Michael F. Cavanagh
                                                                                           Stephen J. Markman
                                                                                           Mary Beth Kelly
                                                                                           Brian K. Zahra
                                                                                           Bridget M. McCormack
                                                                                           David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been                 Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                   Corbin R. Davis


                                                PEOPLE v CLARY

       Docket No. 144696. Argued January 9, 2013 (Calendar No. 8). Decided June 25, 2013.

                Rayfield Clary was convicted by a jury in the Wayne Circuit Court, Daniel Patrick Ryan,
       J., of assault with intent to commit murder, MCL 750.83, and possession of a firearm during the
       commission of a felony, MCL 750.227b. The trial was defendant’s second. Defendant’s first
       trial was declared a mistrial because of a hung jury. Defendant appealed his convictions. The
       Court of Appeals, MURRAY, P.J., and TALBOT and SERVITTO, JJ., reversed defendant’s
       convictions in an unpublished opinion per curiam, issued February 16, 2012 (Docket No.
       301906), concluding, among other things, that defendant had been improperly impeached with
       his silence when the prosecution made repeated references to his failure to testify at his first trial.
       The Supreme Court granted leave to appeal. 491 Mich 933 (2012).

             In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices KELLY
       and ZAHRA, the Supreme Court held:

                 Under the Fifth Amendment of the United States Constitution, no person may be
       compelled in any criminal case to be a witness against himself. The United States Supreme
       Court has held that the Fifth Amendment forbids using a defendant’s failure to take the stand at
       trial as substantive evidence of guilt. However, the United States Supreme Court has also held,
       in Raffel v United States, 271 US 494 (1926), that the Fifth Amendment is not violated when a
       defendant who testifies in his own defense is impeached with his prior silence at a previous trial.
       In this case, defendant’s silence at his previous trial was used for impeachment purposes. Thus,
       it was admissible under Raffel. In Doyle v Ohio, 426 US 610 (1976), the Supreme Court held
       that when a person under arrest is informed, as Miranda requires, that he may remain silent and
       that anything he says may be used against him, it would be fundamentally unfair and a
       deprivation of due process to allow the arrested person’s silence at the time of arrest to be used to
       impeach an explanation subsequently offered at trial. Accordingly, the prosecution’s references
       at trial to defendant’s postarrest, post-Miranda silence with the police were improper. Therefore,
       the disposition reached by the Court of Appeals, reversing defendant’s convictions, was
       affirmed. If a third trial is held, under Doyle defendant’s postarrest, post-Miranda silence with
       the police would be inadmissible, but if defendant were to testify at a third trial, under Raffel the
       prosecution could again refer to defendant’s failure to testify at his first trial without violating his
       constitutional rights. A defendant in a criminal case does not have to testify. However, if he
       takes the stand and testifies in his own defense, his credibility may be impeached and his
       testimony assailed like that of any other witness.
        Judgment of the Court of Appeals reversed to the extent that it held that defendant was
improperly impeached with his silence at his first trial; decision of the Court of Appeals
reversing defendant’s convictions affirmed; Supreme Court’s June 6, 2012, order granting leave
to appeal in this case otherwise vacated; prosecution’s application for leave to appeal denied;
case remanded to the trial court for further proceedings.

        Justice MCCORMACK, concurring, joined all but part III(D) and footnote 9 of the majority
opinion, writing separately to elaborate on the tension between Raffel and Doyle, and noting that
the law remains unclear concerning the evidentiary value of a defendant’s silence even if its
admission is not barred by the United States Constitution. Although no United States Supreme
Court opinion since Raffel has challenged its holding that the Fifth Amendment is not violated
when a defendant is impeached on the basis of his silence at a previous trial, the significance of
that fact is highly questionable in light of the due process rationale set forth in Doyle. State
courts also remain free to formulate evidentiary rules defining the situations in which silence is
viewed as more probative than prejudicial, and the majority correctly left it to the trial court to
decide as an evidentiary matter whether testimony concerning defendant’s silence at his first trial
would be admissible at a third trial.

        Justice CAVANAGH, concurring in part and dissenting in part, concurred in the result that
defendant was entitled to a new trial. Justice CAVANAGH agreed with Justice MCCORMACK that
the decision in Raffel was anomalous in light of the due process and fundamental fairness
concerns subsequently articulated in Doyle and he also agreed with her that aside from the
constitutional issues raised in this case, that there were concerns weighing against a broad rule of
admissibility of a defendant’s silence as an evidentiary matter. Whether challenged testimony is
admissible under the Michigan Rules of Evidence, including MRE 403, is a question that must
be answered whenever the prosecution seeks to elicit evidence concerning a defendant’s silence.

       Justice VIVIANO took no part in the decision of this case.




                                    ©2013 State of Michigan
                                                                                Michigan Supreme Court
                                                                                      Lansing, Michigan
                                                          Chief Justice:          Justices:



Opinion                                                   Robert P. Young, Jr. Michael F. Cavanagh
                                                                               Stephen J. Markman
                                                                               Mary Beth Kelly
                                                                               Brian K. Zahra
                                                                               Bridget M. McCormack
                                                                               David F. Viviano

                                                                           FILED JUNE 25, 2013

                              STATE OF MICHIGAN

                                      SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellant,

 v                                                                 No. 144696

 RAYFIELD CLARY,

               Defendant-Appellee.


 BEFORE THE ENTIRE BENCH (except VIVIANO, J.)

 MARKMAN, J.

        Defendant’s first trial was declared a mistrial because of a hung jury. Following

 defendant’s second jury trial, he was convicted of assault with intent to murder and

 possession of a firearm during the commission of a felony. On appeal, the Court of

 Appeals reversed defendant’s convictions, concluding inter alia that defendant had been

 improperly impeached with his silence when the prosecutor made repeated references to

 his failure to testify at his first trial. We granted leave requesting that the parties address:

 (1) whether the prosecutor’s impeachment of defendant’s testimony using defendant’s

 failure to testify at his earlier trial violated defendant’s Fifth Amendment right against
self-incrimination and (2) whether prior consistent statements by the complainant were

admissible under MRE 801(d)(1)(B). People v Clary, 491 Mich 933 (2012).

       Because we believe that the prosecutor’s impeachment of defendant’s testimony

with his failure to testify at his earlier trial was not improper, we reverse the judgment of

the Court of Appeals to that extent. The Court of Appeals also addressed whether the

prosecutor’s references to defendant’s post-arrest, post-Miranda silence were improper

and held that reversal was not required because the record was unclear regarding whether

the post-arrest silence also constituted post-Miranda silence. However, our review of the

transcript of defendant’s arraignment indicates that defendant was informed of his

Miranda rights at his arraignment, and thus we hold that the prosecutor’s references to

defendant’s post-arrest, post-Miranda silence at trial plainly violated Doyle v Ohio, 426

US 610, 618-619; 96 S Ct 2240; 49 L Ed 2d 91 (1976). Accordingly, we do not disturb

the ultimate disposition reached by the Court of Appeals, i.e., the reversal of defendant’s

convictions. We otherwise vacate this Court’s June 6, 2012 order granting leave to

appeal and deny the prosecutor’s application for leave to appeal because we are not

persuaded that this Court should review the remaining question presented. Finally, we

remand this case to the trial court for further proceedings consistent with this opinion. If

defendant chooses to testify at a third trial, the prosecutor may again refer to defendant’s

failure to testify at his first trial without violating defendant’s constitutional rights.

                                 I. FACTS AND HISTORY

       At defendant’s first trial, the complainant testified that defendant shot him.

Defendant did not testify. The trial was eventually declared a mistrial because of a hung




                                                2
jury. At defendant’s second trial, the complainant again testified that defendant shot him,

but this time defendant testified that he did not shoot the complainant. The prosecutor

impeached defendant’s testimony by asking him why he had not provided that testimony

at the first trial.1 The prosecutor also commented on defendant’s silence at his first trial

during closing arguments.2      Following defendant’s second jury trial, defendant was

convicted of assault with intent to murder, MCL 750.83, and possession of a firearm

during the commission of a felony, MCL 750.227b. The Court of Appeals reversed

defendant’s convictions, concluding, among other things, that defendant was improperly

impeached with his silence when the prosecutor made several references to defendant’s

failure to testify at his first trial. People v Clary, unpublished opinion per curiam of the

Court of Appeals, issued February 16, 2012 (Docket No. 301906). We granted the

prosecutor’s application for leave to appeal. Clary, 491 Mich 933.

                               II. STANDARD OF REVIEW

       Whether defendant was improperly impeached with his silence is a question of law

that we review de novo. People v Borgne, 483 Mich 178, 184; 768 NW2d 290 (2009).




1
 For instance, the prosecutor asked defendant, “You didn’t tell that jury the same story
you’re telling this jury, did you, sir?” and “[I]f that was the truth and that was so
important, why didn’t you tell the last jury?”
2
  Specifically, the prosecutor said, “Well, ladies and gentleman, if it’s the truth, if it’s the
truth and you’re on trial, why wouldn’t you tell the first jury?”



                                               3
                                     III. ANALYSIS

                                   A. BACKGROUND

       The Fifth Amendment of the United States Constitution provides that “[n]o person

shall . . . be compelled in any criminal case to be a witness against himself . . . .” US

Const, Am V. See also Const 1963, art 1, § 17. The Fifth Amendment has been made

applicable to the states through the Due Process Clause of the Fourteenth Amendment.

Malloy v Hogan, 378 US 1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964). Pursuant to

Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966), in order to

protect the privilege against compelled self-incrimination during custodial police

interrogations, the suspect “must be warned that he has a right to remain silent [and] that

any statement he does make may be used as evidence against him . . . .” The United

States Supreme Court has held that “the Fifth Amendment, in its direct application to the

Federal Government, and in its bearing on the States by reason of the Fourteenth

Amendment, forbids either comment by the prosecution on the accused’s silence [at trial]

or instructions by the court that such silence is evidence of guilt.” Griffin v California,

380 US 609, 615; 85 S Ct 1229; 14 L Ed 2d 106 (1965). That is, the Fifth Amendment

prohibits using a defendant’s failure to take the stand as substantive evidence of guilt. Id.

The Court has also held that “‘[w]hen a person under arrest is informed, as Miranda

requires, that he may remain silent, [and] that anything he says may be used against

him,’” “it would be fundamentally unfair and a deprivation of due process to allow the

arrested person’s silence [at the time of his arrest] to be used to impeach an explanation

subsequently offered at trial.” Doyle, 426 US at 618-619 (citation omitted); see also




                                             4
Borgne, 483 Mich at 186-188; People v Shafier, 483 Mich 205, 212-214; 768 NW2d 305

(2009).3

       However, the United States Supreme Court has also held that “the use of prearrest

silence to impeach a defendant’s credibility violates [n]either the Fifth [n]or the

Fourteenth Amendment to the Constitution.” Jenkins v Anderson, 447 US 231, 232, 238,

240; 100 S Ct 2124; 65 L Ed 2d 86 (1980); see also People v Cetlinski (After Remand),

435 Mich 742, 757; 460 NW2d 534 (1990) (“[N]either the Fifth Amendment nor the

Michigan Constitution preclude[s] the use of prearrest silence for impeachment

purposes.”). Moreover, it has also held that “[i]n the absence of the sort of affirmative

assurances embodied in the Miranda warnings, we do not believe that it violates due

process of law for a State to permit cross-examination as to postarrest silence when a

defendant chooses to take the stand.” Fletcher v Weir, 455 US 603, 607; 102 S Ct 1309;

71 L Ed 2d 490 (1982). Finally, it has held that “the Fifth Amendment is not violated

when a defendant who testifies in his own defense is impeached with his prior silence” at

his first trial. Jenkins, 447 US at 235, citing Raffel v United States, 271 US 494; 46 S Ct

566; 70 L Ed 1054 (1926).




3
  Cf. United States v Robinson, 485 US 25, 34; 108 S Ct 864; 99 L Ed 2d 23 (1988) (“It is
one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s
exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite
another to urge, as defendant does here, that the same reasoning would prohibit the
prosecutor from fairly responding to an argument of the defendant by adverting to that
silence.”); People v Sutton (After Remand), 436 Mich 575, 580; 464 NW2d 276 (1990)
(“[S]ilence is admissible to impeach a defendant’s claim that he did not remain silent.”).



                                             5
                                 B. RAFFEL AND STEWART

          In Raffel, 271 US at 496, 499, the United States Supreme Court held that it was

not “error to require the defendant, Raffel, offering himself as a witness upon the second

trial, to disclose that he had not testified as a witness in his own behalf upon the first

trial.”
                The immunity from giving testimony is one which the defendant
          may waive by offering himself as a witness. When he takes the stand in his
          own behalf, he does so as any other witness, and within the limits of the
          appropriate rules he may be cross-examined as to the facts in issue. He
          may be examined for the purpose of impeaching his credibility. His failure
          to deny or explain evidence of incriminating circumstances of which he
          may have knowledge, may be the basis of adverse inference, and the jury
          may be so instructed.[4] His waiver is not partial; having once cast aside the
          cloak of immunity, he may not resume it at will, whenever cross-
          examination may be inconvenient or embarrassing.

                 If, therefore, the questions asked of the defendant were logically
          relevant, and competent within the scope of the rules of cross-examination,
          they were proper questions . . . . [Id. at 496-497 (citations omitted).]




4
  See People v Prevost, 219 Mich 233, 238; 189 NW 92 (1922) (“‘The exemption from
unfavorable comment is applicable only when the accused wholly refrains from
testifying. If he voluntarily goes upon the stand, he waives this exemption, and the State
may comment upon his testimony as fully as upon that of any other witness, and may call
attention to his silence and demeanor while there, or at the preliminary examination, to
his refusal to answer incriminating questions; or to deny prominent and damaging facts of
which he must have some personal knowledge[.]’”), quoting Underhill, Criminal
Evidence (2d ed), § 68; People v McCrea, 303 Mich 213, 285; 6 NW2d 489 (1942)
(“‘The privilege of the defendant against self-incrimination and its corollary, the
prohibition against comment by counsel for the government upon his failure to testify,
have been jealously protected by the courts. But, when the defendant elects, voluntarily,
to testify, he waives his privilege, subjects himself to cross-examination and
impeachment, and makes comment upon his testimony [or his refusal to testify] entirely
proper.’”) (citation omitted).




                                                6
The Court then held that asking the defendant about his silence at his first trial was

logically relevant and competent within the scope of the general rules of cross-

examination:

                [W]e do not think the questions asked of him were irrelevant or
       incompetent. For if the cross-examination had revealed that the real reason
       for the defendant’s failure to contradict the government’s testimony on the
       first trial was a lack of faith in the truth or probability of his own story, his
       answers would have a bearing on his credibility and on the truth of his own
       testimony in chief.[5]

               It is elementary that a witness who upon direct examination denies
       making statements relevant to the issue, may be cross-examined with
       respect to conduct on his part inconsistent with this denial. The value of
       such testimony, as is always the case with cross-examination, must depend
       upon the nature of the answers elicited; and their weight is for the jury. But
       we cannot say that such questions are improper cross-examination,
       although the trial judge might appropriately instruct the jury that the failure
       of the defendant to take the stand in his own behalf is not in itself to be
       taken as an admission of the truth of the testimony which he did not deny.
       [Id. at 497-498.][6]

5
  While Justice CAVANAGH may be correct that Raffel “‘did not focus on the question
whether the cross-examination there involved was in fact probative in impeaching the
defendant’s credibility,’” post at 2 (emphasis added; citation omitted), Raffel also was not
silent on the subject either. Instead, Raffel, 271 US at 497-498, expressly held that the
defendant’s prior silence was not “irrelevant” and may “have a bearing on his credibility
and on the truth of his own testimony in chief.” Contrary to Justice CAVANAGH’s
suggestion, we do not hold that “a defendant’s silence is per se highly probative, that a
defendant’s silence at a previous trial is ‘plain evidence of guilt’ that should not be
suppressed, or that the use of a defendant’s silence as an impeachment tool should be
applied with ‘special vigor . . . .’” Post at 4 n 6. Instead, we simply hold that a
defendant’s prior silence might be, under certain circumstances, probative evidence with
regard to a defendant’s credibility, or lack thereof, and that when it is, assuming that its
admission is otherwise permitted under the rules of evidence, it should not be excluded
from the evidence presented to the jury.
6
 Justice CAVANAGH cites Justice LEVIN’s concurrence/dissent in Cetlinski, 435 Mich at
788-789, for the proposition that “‘a defendant’s silence is not generally admissible.’”
Post at 4 (emphasis in the original). However, this seems to be inconsistent with the


                                              7
In summary, the Court held:

               The safeguards against self-incrimination are for the benefit of those
       who do not wish to become witnesses in their own behalf and not for those
       who do. There is a sound policy in requiring the accused who offers
       himself as a witness to do so without reservation, as does any other witness.
       We can discern nothing in the policy of the law against self-incrimination
       which would require the extension of immunity to any trial or to any
       tribunal other than that in which the defendant preserves it by refusing to
       testify. [Id. at 499.]

       We are not persuaded by the Court of Appeals’ attempt to distinguish Raffel. The

Court of Appeals stated, “Unlike the defendant in Raffel, defendant in this case did not

contradict the testimony of a witness offered at both his first and second trial.” Clary,

unpub op at 8. We respectfully disagree. In both Raffel and the instant case, the


majority opinion in Cetlinski, 435 Mich at 760 n 31, which held that “prior silence of a
witness with regard to a fact to which he has testified, where such silence occurs under
circumstances in which he would be expected to speak out, may be used to impeach
during cross-examination,” as well as with majority opinions from the United States
Supreme Court. See, e.g., Jenkins, 447 US at 239 (“Common law traditionally has
allowed witnesses to be impeached by their previous failure to state a fact in
circumstances in which that fact naturally would have been asserted.”), citing 3A
Wigmore, Evidence (Chadbourn rev), § 1042, p 1056; Baxter v Palmigiano, 425 US 308,
319; 96 S Ct 1551; 47 L Ed 2d 810 (1976) (“[T]he Court has consistently recognized that
in proper circumstances silence in the face of accusation is a relevant fact not barred from
evidence by the Due Process Clause. Indeed, . . . [s]ilence is often evidence of the most
persuasive character.”) (citations and quotation marks omitted); United States v Hale, 422
US 171, 176; 95 S Ct 2133; 45 L Ed 2d 99 (1975) (“Silence gains more probative weight
where it persists in the face of accusation, since it is assumed in such circumstances that
the accused would be more likely than not to dispute an untrue accusation.”); Grunewald
v United States, 353 US 391, 422-423; 77 S Ct 963; 1 L Ed 2d 931 (1957) (“Innocent
men are more likely to [remain silent] in secret proceedings, where they testify without
advice of counsel and without opportunity for cross-examination, than in open court
proceedings, where cross-examination and judicially supervised procedure provide
safeguards for the establishing of the whole, as against the possibility of merely partial,
truth.”).



                                             8
defendant contradicted the testimony of a witness offered at both the first and second

trials. In Raffel, the defendant contradicted the testimony of a government agent who

testified that the defendant had made admissions of guilt, and in the instant case,

defendant contradicted the testimony of the complainant who testified that defendant shot

him.

       We are equally unpersuaded by the Court of Appeals’ conclusion that the instant

case is more like Stewart v United States, 366 US 1; 81 S Ct 941; 6 L Ed 2d 84 (1961).

Unlike in Raffel and the instant case, in Stewart the defendant did not contradict the

testimony of a witness offered at both his first and second trials. As Stewart, 366 US at

5-6, explained:

               The Raffel case . . . involved a situation in which Raffel had sat
       silent at his first trial in the face of testimony by a government agent that
       Raffel had previously made admissions pointing to his guilt. On a second
       trial, Raffel took the stand and denied the truth of this same testimony
       offered by the same witness. Under these circumstances, this Court held
       that Raffel’s silence at the first trial could be shown in order to discredit his
       testimony at the second trial on the theory that the silence itself constituted
       an admission as to the truth of the agent’s testimony. The result was that
       Raffel’s silence at the first trial was held properly admitted to impeach the
       specific testimony he offered at the second trial. Here, on the other hand,
       the defendant’s entire “testimony” comprised nothing more than “gibberish
       without meaning” with the result that there was no specific testimony to
       impeach.

This “gibberish” was apparently offered to demonstrate that the defendant was insane,

which was the defendant’s chief defense at all three of his trials, and not to contradict the

testimony of any witness. The United States Supreme Court held that because the

defendant’s silence was not used for impeachment purposes, it was not admissible under

Raffel. In this case, however, defendant’s silence was clearly used for impeachment



                                              9
purposes and, thus, it is admissible under Raffel.7 We therefore hold that defendant was

not improperly impeached with his silence when the prosecutor made repeated references

to his failure to testify at his first trial. Accordingly, if defendant chooses to testify at a

third trial, the prosecutor may again refer to defendant’s failure to testify at his first trial

without violating defendant’s constitutional rights.8

                                 C. DOYLE AND JENKINS

       However, the prosecutor may not again refer to defendant’s post-arrest, post-

Miranda silence with the police because to do so would clearly violate Doyle, 426 US at

618-619, which prohibits the admission of post-arrest, post-Miranda silence with the


7
  Moreover, “[t]he decision in Stewart v. United States was based on federal evidentiary
grounds, not on the Fifth Amendment,” Jenkins, 447 US at 237 n 4 (citation omitted), and
thus it is not binding on this Court. See People v Finley, 431 Mich 506, 514; 431 NW2d
19 (1988).
8
  Defendant alternatively argues that his silence at his first trial is barred as an evidentiary
matter. But see Cetlinski, 435 Mich at 760 n 31 (“[P]rior silence of a witness with regard
to a fact to which he has testified, where such silence occurs under circumstances in
which he would be expected to speak out, may be used to impeach during cross-
examination.”). Because defendant did not previously raise this issue, the lower courts
did not address it, and thus we will not address it either. However, on remand, defendant
is not precluded from raising this issue. To this extent, we agree with Justice CAVANAGH
that “the fact that impeaching a defendant with his or her silence at a prior trial might be
constitutional does not mean that, as an evidentiary matter, a defendant’s prior silence is
automatically admissible in a later trial when a defendant elects to waive his
constitutional and statutory rights in favor of testifying.” Post at 3 (emphasis altered).
That is, we agree with Justice CAVANAGH that the admission of a defendant’s prior
silence, as with any other piece of evidence, must comply with the rules of evidence,
including MRE 401 (defining relevant evidence), MRE 402 (providing that relevant
evidence is generally admissible), and MRE 403 (providing that relevant evidence “may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice”).



                                              10
police. At defendant’s second trial, the prosecutor impeached defendant by asking him

why, after he was arrested and arraigned, he had not told the police that he did not shoot

the complainant.     The prosecutor also referred to this silence during her closing

argument. The Court of Appeals held that there was no Doyle violation because “[a]fter

reviewing the record, it is unclear whether the post-arrest silence referenced by the

prosecutor was also post-Miranda silence.”          Clary, unpub op at 5.        This Court

subsequently granted defendant’s motion to consider the transcript of defendant’s

arraignment, which shows that defendant had been informed of his Miranda rights at his

arraignment. Clary, 821 NW2d 314 (Mich, 2012). Given this new information, it seems

clear that the prosecutor’s references to defendant’s post-arrest, post-Miranda silence

with the police violated Doyle.      Accordingly, we hold that if there is a third trial,

defendant’s post-arrest, post-Miranda silence with the police is inadmissible.

       Defendant argues that there is a tension between Raffel and Doyle because while

Doyle holds that post-Miranda silence is inadmissible, Raffel holds that silence at an

earlier trial is admissible to impeach a defendant who testifies at a subsequent trial, even

though this silence is also post-Miranda silence. Although we recognize this tension, we

also recognize that Raffel has not been overruled by Doyle or by any other United States

Supreme Court decision. Indeed, Doyle expressly held that it was “unnecessary” to

address in that case the constitutionality of a prosecutor’s inquiry into silence after the

time of arrest because that later silence “present[s] different considerations . . . .” Doyle,

426 US at 616 n 6. Specifically, Doyle explained:

             In addition, error of constitutional dimension is asserted because
       each petitioner was cross-examined as to post-arrest, preliminary hearing,
       and general pretrial silence when he testified as a defense witness at the


                                             11
       other petitioner’s trial. These averments of error present different
       considerations from those implicated by cross-examining petitioners as
       defendants as to their silence after receiving Miranda warnings at the time
       of arrest.[9] In view of our disposition of this case we find it unnecessary to
       reach these additional issues. [Id. (emphasis omitted).]

Therefore, it appears that Doyle’s rule prohibiting the admission of post-Miranda silence

applies to silence at the time of arrest, while Raffel’s rule permitting the admission of

post-Miranda silence applies to silence at an earlier trial when the defendant takes the

stand at a subsequent trial. This conclusion is further underscored by the fact that after

Doyle was decided, the United States Supreme Court in Jenkins recognized the continued

vitality of Raffel’s rule that a defendant’s silence at his first trial can be used to impeach

the defendant at a subsequent trial if the defendant decides to take the stand. Jenkins, 447

US at 235-238. Not only did Jenkins favorably discuss Raffel at length, but it also

expressly rejected the suggestion “that the constitutional rule of Raffel was limited by

later decisions of the Court,” explaining that “no Court opinion decided since Raffel has

challenged its holding that the Fifth Amendment is not violated when a defendant is

impeached on the basis of his prior silence.” Id. at 237 n 4.

                       D. “CHILLING” FIFTH AMENDMENT RIGHTS

       Defendant suggests that a person facing a trial will be less likely to rely on his

right to remain silent if he knows that his reliance on that right can be subsequently used

9
   See Note, The Admissibility of Prior Silence to Impeach the Testimony of Criminal
Defendants, 18 U Mich J L Reform 741, 752, 766 (1985) (Because “[t]he government
inducement to remain silent, which may be caused by the shock of arrest, the fearful
nature of custody, the Miranda warnings, or any combination thereof, will gradually lose
its influence on the defendant as pressure is diminished and advice of counsel [is]
obtained,” “silence occurring long after the Miranda ‘inducement’ may be used for
impeachment.”).



                                             12
against him, that is to say, exercise of the Fifth Amendment right against self-

incrimination will be “chilled.” However, as Jenkins, 447 US at 236-237, explained,

“The Raffel Court explicitly rejected the contention that the possibility of impeachment

by prior silence is an impermissible burden upon the exercise of Fifth Amendment

rights.” In other words, Raffel specifically considered the argument that “the adoption of

the rule contended for by the Government might operate to bring pressure on the accused

to take the stand on the first trial, for fear of the consequences of his silence in the event

of a second trial; and might influence the defendant to continue his silence on the second

trial because his first silence may there be made to count against him,” and held that this

argument was “without substance.” Raffel, 271 US at 498-499.

              We need not close our eyes to the fact that every person accused of
       crime is under some pressure to testify, lest the jury, despite carefully
       framed instructions, draw an unfavorable inference from his silence.[10]
       When he does take the stand, he is under the same pressure: to testify fully,
       rather than avail himself of a partial immunity. And the accused at the
       second trial may well doubt whether the advantage lies with partial silence
       or with complete silence. Even if, on his first trial, he were to weigh the
       consequences of his failure to testify then, in the light of what might occur
       on a second trial, it would require delicate balances to enable him to say
10
   See Williams v Florida, 399 US 78, 83-84; 90 S Ct 1893; 26 L Ed 2d 446 (1970) (“The
defendant in a criminal trial is frequently forced to testify himself and to call other
witnesses in an effort to reduce the risk of conviction. When he presents his witnesses,
he must reveal their identity and submit them to cross-examination which in itself may
prove incriminating or which may furnish the State with leads to incriminating rebuttal
evidence. That the defendant faces such a dilemma demanding a choice between
complete silence and presenting a defense has never been thought an invasion of the
privilege against compelled self-incrimination.”); Barnes v United States, 412 US 837,
847; 93 S Ct 2357; 37 L Ed 2d 380 (1973) (“Introduction of any evidence, direct or
circumstantial, tending to implicate the defendant in the alleged crime increases the
pressure on him to testify. The mere massing of evidence against a defendant cannot be
regarded as a violation of his privilege against self-incrimination.”).



                                             13
      that the rule of partial immunity would make his burden less onerous than
      the rule that he may remain silent, or at his option, testify fully, explaining
      his previous silence. We are unable to see that the rule that if he testifies,
      he must testify fully, adds in any substantial manner to the inescapable
      embarrassment which the accused must experience in determining whether
      he shall testify or not. [Id. at 499 (citations omitted).]

      It is well established that “the Constitution does not forbid ‘every government-

imposed choice in the criminal process that has the effect of discouraging the exercise of

constitutional rights.’” Jenkins, 447 US at 236, quoting Chaffin v Stynchcombe, 412 US

17, 30; 93 S Ct 1977; 36 L Ed 2d 714 (1973). More specifically, “[i]t is well settled that

the government need not make the exercise of the Fifth Amendment privilege cost free.”

McKune v Lile, 536 US 24, 41; 122 S Ct 2017; 153 L Ed 2d 47 (2002) (opinion by

Kennedy, J.). For example, in Crampton v Ohio, decided with McGautha v California,

402 US 183, 185, 211; 91 S Ct 1454; 28 L Ed 2d 711 (1971),11 the Court held that Ohio’s

single-trial procedure, which allowed a defendant to “remain silent on the issue of guilt

only at the cost of surrendering any chance to plead his case on the issue of punishment,”

was “constitutionally permissible.” As the Court explained:

              The criminal process, like the rest of the legal system, is replete with
      situations requiring “the making of difficult judgments” as to which course
      to follow. Although a defendant may have a right, even of constitutional
      dimensions, to follow whichever course he chooses, the Constitution does
      not by that token always forbid requiring him to choose. . . .

              . . . It does no violence to the privilege that a person’s choice to
      testify in his own behalf may open the door to otherwise inadmissible
      evidence which is damaging to his case. . . .

                                          * * *

11
 The decision in Crampton was later vacated on other grounds. Crampton v Ohio, 408
US 941; 92 S Ct 2873; 33 L Ed 2d 765 (1972).



                                            14
               It has long been held that a defendant who takes the stand in his own
       behalf cannot then claim the privilege against cross-examination on matters
       reasonably related to the subject matter of his direct examination. It is not
       thought overly harsh in such situations to require that the determination
       whether to waive the privilege take into account the matters which may be
       brought out on cross-examination. It is also generally recognized that a
       defendant who takes the stand in his own behalf may be impeached by
       proof of prior convictions or the like.[12] Again, it is not thought
       inconsistent with the enlightened administration of criminal justice to
       require the defendant to weigh such pros and cons in deciding whether to
       testify. [Id. at 213-215 (citations omitted).]

       Similarly, in Chaffin, 412 US at 18, 29, the Court held that “in those States that

entrust the sentencing responsibility to the jury, the Due Process Clause of the Fourteenth

Amendment [does not] bar[] the jury from rendering higher sentences on retrials

following reversals of prior convictions,” even though the potential of “harsher sentences

on retrial . . . [may] have a ‘chilling effect’ on the convicted defendant’s exercise of his

right to challenge his first conviction either by direct appeal or collateral attack.” “The

choice occasioned by the possibility of a harsher sentence, even in the case in which the

choice may in fact be ‘difficult,’ does not place an impermissible burden on the right of a

criminal defendant to appeal or attack collaterally his conviction.” Id. at 35. See also

Brady v United States, 397 US 742, 751; 90 S Ct 1463; 25 L Ed 2d 747 (1970) (declining

“to hold . . . that a guilty plea is compelled and invalid under the Fifth Amendment

whenever motivated by the defendant’s desire to accept the certainty or probability of a

lesser penalty rather than face a wider range of possibilities extending from acquittal to

12
  Similarly, “a statement taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966),
may be used to impeach a defendant’s credibility.” Jenkins, 447 US at 237, citing Harris
v New York, 401 US 222, 225; 91 S Ct 643; 28 L Ed 2d 1 (1971) (“Every criminal
defendant is privileged to testify in his own defense, or to refuse to do so. But that
privilege cannot be construed to include the right to commit perjury.”).



                                            15
conviction and a higher penalty authorized by law for the crime charged”); People v

Wyngaard, 462 Mich 659, 673-674; 614 NW2d 143 (2000) (“[T]he tactical decision that

an inmate must make regarding whether to testify at a disciplinary hearing, when his

testimony might potentially be used against him in a subsequent criminal proceeding,

while perhaps quite difficult, does not constitute ‘compulsion’ under the Fifth

Amendment.”) (citation and quotation marks omitted).             Likewise, the fact that a

defendant deciding whether to take the stand might consider that, if he does not take the

stand and a mistrial is declared and the prosecutor decides to retry him and he

subsequently decides to take the stand at his second trial, the prosecutor might be able to

use his silence at his first trial to impeach his testimony at the second trial, does not place

an impermissible burden on the defendant’s right to not take the stand in the first place.

That is, it does not “compel” the defendant “to be a witness against himself,” which is all

the Fifth Amendment prohibits.

       “In determining whether a constitutional right has been burdened impermissibly, it

also is appropriate to consider the legitimacy of the challenged governmental practice.”

Jenkins, 447 US at 238. In this case, as in Jenkins, the challenged governmental practice

is impeachment on cross-examination of a defendant, and as Jenkins, 447 US at 238,

explained:

               Attempted impeachment on cross-examination of a defendant, the
       practice at issue here, may enhance the reliability of the criminal process.
       Use of such impeachment on cross-examination allows prosecutors to test
       the credibility of witnesses by asking them to explain prior inconsistent
       statements and acts. A defendant may decide not to take the witness stand
       because of the risk of cross-examination. But this is a choice of litigation
       tactics. Once a defendant decides to testify, “[the] interests of the other
       party and regard for the function of courts of justice to ascertain the truth


                                              16
       become relevant, and prevail in the balance of considerations determining
       the scope and limits of the privilege against self-incrimination.”

              Thus, impeachment follows the defendant’s own decision to cast
       aside his cloak of silence and advances the truthfinding function of the
       criminal trial. [Citation omitted; alteration in the original.][13]

A defendant in a criminal case does not have to testify. However, “[i]f he takes the stand

and testifies in his own defense, his credibility may be impeached and his testimony

assailed like that of any other witness . . . .” Brown v United States, 356 US 148, 154; 78

S Ct 622; 2 L Ed 2d 589 (1958); see also People v Collier, 426 Mich 23, 38; 393 NW2d

346 (1986) (“When a defendant at trial elects to waive his privilege not to testify and

takes the stand, attempted impeachment is a time-honored method of advancing the

truthfinding function.”). “Such a witness has the choice, after weighing the advantage of

the privilege against self-incrimination against the advantage of putting forward his

version of the facts and his reliability as a witness, not to testify at all.” Brown, 356 US

at 155. However, “[h]e cannot reasonably claim that the Fifth Amendment gives him not

only this choice but, if he elects to testify, [also] an immunity from cross-examination on

13
   See Department of Justice, Office of Legal Policy, Report to the Attorney General on
Adverse Inferences from Silence, 22 U Mich J L Reform 1005, 1007 (1989) (“While the
nature of the evidence available in criminal prosecutions varies widely from case to case,
there is one constant among the potential sources of evidence—the defendant himself is
almost invariably aware of whether he actually committed the offense with which he is
charged. The criminal justice system’s approach to that uniquely knowledgeable
individual (the defendant) as a source of evidence has an important bearing on its
effectiveness in the pursuit of truth and substantive justice.”); Note, 18 U Mich J L
Reform at 756 (“Use of prior silence to impeach a defendant’s trial testimony aids in the
truth-testing function. Because the defendant has a critical interest in the outcome of his
trial, he may have a great incentive to perjure himself or distort the facts when he
testifies. Therefore, truth-testing functions of impeachment and cross-examination
should be applied with special vigor to assure the veracity of the defendant’s
testimony.”).



                                            17
the matters he has himself put in dispute.”        Id. at 155-156.    Indeed, if the Fifth

Amendment were interpreted to confer a “‘right to set forth to the jury all the facts which

tend in [the defendant’s] favor without laying himself open to cross-examination upon

those facts,’” “[i]t would make of the Fifth Amendment not only a human safeguard

against judicially coerced self-disclosure but a positive invitation to mutilate the truth a

party offers to tell.” Id. at 155-156 (citation omitted). Because “‘[t]here is hardly

justification for letting the defendant affirmatively resort to perjurious testimony in

reliance on the Government’s disability to challenge his credibility,’” id. at 156 (citation

omitted), the Fifth Amendment has never been interpreted as conferring that right, and

we refuse to do so here today.14

14
  As explained in the Report to the Attorney General, 22 U Mich J L Reform at 1119-
1120:

              Any constraints on the discovery or use of evidence that the
       Constitution actually prescribes must, of course, be scrupulously observed.
       It is a very different matter, however, to create new “rights,” based on
       misinterpretations of the Constitution, which limit legislative discretion in
       seeking to improve the processes of justice for the benefit of the whole
       public, and impede government in discharging its primary mission of
       ensuring the security of its people in their lives and liberty:

              “Truth here is the aim . . . . When the guilty go undetected, or, if
       detected, are nonetheless set free because plain evidence of guilt is
       suppressed, the price is exacted from what must be the first right of the
       individual, the right to be protected from criminal attack in his home, in his
       work, and in the streets. Government is constituted to provide law and
       order. The Bill of Rights must be understood in the light of that mission.

              “There is no right to escape detection. There is no right to commit a
       perfect crime or to an equal opportunity to that end. The Constitution is not
       at all offended when a guilty man stubs his toe. On the contrary, it is
       decent to hope that he will . . . . Thus the Fifth Amendment does not say
       that a man shall not be permitted to incriminate himself, or that he shall not


                                            18
                                     IV. CONCLUSION

       For these reasons, we hold that defendant was not improperly impeached with his

silence when the prosecutor made repeated references to defendant’s failure to testify at

his first trial. We therefore reverse the judgment of the Court of Appeals to the extent

that it conflicts with this holding. We also hold that the prosecutor’s references to

defendant’s post-arrest, post-Miranda silence at trial plainly violated Doyle. Accordingly,

we do not disturb the ultimate disposition reached by the Court of Appeals, i.e., the

reversal of defendant’s convictions. We otherwise vacate this Court’s June 6, 2012 order

granting leave to appeal and deny the prosecutor’s application for leave to appeal because

we are not persuaded that this Court should review the remaining question presented. We

also remand this case to the trial court for further proceedings consistent with this

opinion. If defendant chooses to testify at a third trial, the prosecutor may again refer to

his failure to testify at his first trial without violating defendant’s constitutional rights.


                                                            Stephen J. Markman
                                                            Robert P. Young, Jr.
                                                            Mary Beth Kelly
                                                            Brian K. Zahra




       be persuaded to do so. It says no more than that a man shall not be
       ‘compelled’ to give evidence against himself.”

       In particular, the [F]ifth [A]mendment does not state or fairly imply that
       rules must be adopted to protect the defendant from the inferences which
       are normally drawn from silence in the face of incriminating circumstances.
       [Citation omitted.]


                                               19
                              STATE OF MICHIGAN

                                       SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellant,

v                                                              No. 144696

RAYFIELD CLARY,

                Defendant-Appellee.


MCCORMACK, J. (concurring).
         I join all but part III(D) and footnote 9 of the majority opinion. I write separately

for two reasons: first, to elaborate on the majority’s discussion of the tension between the

holdings in Raffel v United States1 and Doyle v Ohio2 and second, to note that the law

remains unclear concerning the evidentiary value of a defendant’s silence even if its

admission is not barred by the United States Constitution. Accordingly, while there are

significant points on which I agree with part III(D) of the majority opinion, I believe it is

also important to highlight countervailing concerns regarding the use of silence.

         As the majority opinion correctly observes, Raffel has not been overruled, and the

United States Supreme Court has recognized its continued vitality. I further agree with

the majority that the Court of Appeals’ attempts to distinguish Raffel are not persuasive.



1
    Raffel v United States, 271 US 494; 46 S Ct 566; 70 L Ed 1054 (1926).
2
    Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).
For these reasons, I agree that under controlling precedent the Constitution does not bar

the admission of evidence concerning defendant’s silence at his first trial.

         I am doubtful, however, that much of Raffel’s reasoning remains sustainable in

light of the subsequent Doyle decision. In particular, Raffel’s holding that any Fifth

Amendment protection is waived when a defendant elects to testify at his or her second

trial and the prosecution questions the defendant about his or her failure to testify at the

first trial seems incompatible with Doyle’s reasoning. Doyle explained that “it would be

fundamentally unfair and a deprivation of due process to allow the arrested person’s

silence to be used to impeach an explanation subsequently offered at trial.”3 Thus,

questioning a defendant about why he or she did not testify at an earlier trial casts the

defendant’s prior silence in a negative light when the defendant might have previously

relied on a constitutional protection—something expressly forbidden by Doyle.4 And as

the majority observes, silence at trial is also post-Miranda silence.          Moreover, the

compulsion to speak at a first trial is similar to the compulsion to speak during a custodial

interrogation by police. In both scenarios, the suspect/defendant is being accused of

committing a crime and presented with the evidence supporting his or her guilt.




3
    Id. at 618.
4
  Poulin, Evidentiary use of silence and the constitutional privilege against self-
incrimination, 52 Geo Wash L R 191, 215 (1984) (“Thorough analysis reveals that
impeachment use of privileged silence impairs the policies underlying the fifth
amendment privilege. Permitting impeachment by silence invades the accused’s mental
privacy protected by the fifth amendment because the government can use the silence as
insight into the accused’s mind, to discredit his sworn in-court testimony.”).



                                             2
         Thus, while I recognize that “no Court opinion decided since Raffel has challenged

its holding that the Fifth Amendment is not violated when a defendant is impeached on

the basis of his prior silence,”5 the significance of that statement is highly questionable in

light of the due process rationale of Doyle.6 Because Jenkins involved the question of

whether it was permissible to comment on a defendant’s prearrest silence, which might

very well not involve reliance on a constitutional protection because the suspect might be

unaware of his or her right to remain silent,7 the Supreme Court in Jenkins was not forced

to directly confront the tension between Raffel and Doyle.8



5
    Jenkins v Anderson, 447 US 231, 237 n 4; 100 S Ct 2124; 65 L Ed 2d 86 (1980).
6
  See, e.g., id. at 241 n 2 (Stevens, J., concurring) (“[T]here is a serious question about
the continuing vitality of Raffel.”); id. at 245 n 10 (“It strikes me as anomalous that,
assuming Raffel has survived Doyle, a defendant who takes the stand is deemed to waive
his Fifth Amendment objection to the use of his pretrial silence, but not to waive what I
regard as a much less focused, and hence weaker, due process objection. Perhaps the
Court’s opinion can best be understood by assuming that Raffel is not good law on its
facts under the Doyle rationale.”) (citation omitted); see also Raithel v State, 40 Md App
107, 117; 388 A2d 161 (1978) (“The reasoning employed in Johnson [v United States,
318 US 189; 63 S Ct 549; 87 L Ed 704 (1943)], Grunewald [v United States, 353 US 391;
77 S Ct 963; 1 L Ed 2d 931 (1957)], and Doyle is fundamentally inconsistent with the
notion contained in Raffel that an accused completely waives his privilege against self-
incrimination by testifying and it makes no difference that an accused’s prior silence
might then be used as a weapon against him.”).
7
  But see Brief for the American Civil Liberties Union as Amicus Curiae in Salinas v
Texas, ___ US ___; 133 S Ct 928; 184 L Ed 2d 719 (2013) (granting cert), filed February
26, 2013, p 15 (“Now, in 2013, pre-arrest, pre-Miranda silence is just as likely to be
attributed to pre-existing knowledge of Miranda’s rights as to any other reason . . . .”).
8
  Jenkins, 447 US at 240 (“The failure to speak occurred before the petitioner was taken
into custody and given Miranda warnings. Consequently, the fundamental unfairness
present in Doyle is not present in this case.”).



                                              3
      In this case, that tension is both present and particularly concerning because it is

readily apparent from the record that defendant relied on his Fifth Amendment right in

choosing to remain silent after receiving Miranda warnings.9           Thus, the precise

unfairness about which the Doyle Court was concerned—allowing impeachment using

silence premised on the assertion of a constitutional right—is present in this case. While

the majority correctly holds that “defendant’s post-arrest, post-Miranda silence with the

police is inadmissible,” the competing rationales set forth in Raffel and Doyle are not

easily reconcilable with regard to the period following a post-Miranda police

interrogation.10 Nor are they any more consistent when the silence occurred at a prior

criminal proceeding. In other words, that a defendant waives his or her Fifth Amendment

right when he or she chooses to take the stand, yet due process and fundamental fairness



9
  When the prosecution asked defendant why he didn’t think it was important enough to
tell the police the same story he told the jury at his second trial, defendant answered “I
exercised my Fifth Amendment Right.” Although defendant did not repeat this assertion
in response to questioning about why he did not testify at his first trial, Doyle does not
require that a defendant have actually relied on his Fifth Amendment right for due
process to be violated; it is sufficient that he may have relied on that right. See Doyle,
426 US at 619 n 10.
10
   See Brecht v Abrahamson, 507 US 619, 628-629; 113 S Ct 1710; 123 L Ed 2d 353
(1993) (“[T]he State’s references to petitioner’s silence after [receiving Miranda
warnings], or more generally to petitioner’s failure to come forward with his version of
events at any time before trial crossed the Doyle line.”) (emphasis added; citation
omitted); Gov’t of Virgin Islands v Davis, 561 F3d 159, 164-165 (CA 3, 2009) (rejecting
the government’s argument that “Doyle only limits a prosecutor from referencing at trial
a defendant’s post-Miranda silence at the time of his arrest, and that Raffel thus permits
impeachment at trial on the defendant’s silence during any other time prior to trial” in
part on the basis of “the obvious distinction that Raffel speaks only to the privilege
against self-incrimination rather than due process”).



                                            4
prohibit impeachment of a testifying defendant with post-Miranda silence because the

defendant relied on that right, presents an analytical Gordian knot.

         Despite this unresolved conflict in the law, I concur with the majority opinion

because Raffel is directly controlling here and has not been overruled, whereas Doyle has

not been extended to this context. Thus, it must be the correct result unless or until the

United States Supreme Court reconciles the adverse rationales underlying its holdings in

Raffel and Doyle. I look forward to that case.

         My second and related point involves the use of a defendant’s silence as an

evidentiary matter. While part III(D) of the majority opinion articulates the arguments

for why the use of silence is not barred under the Fifth Amendment, I believe it is

important to identify some factors militating against a broad rule in favor of admissibility

as an evidentiary matter. To begin with, it is telling that in the same case in which the

United States Supreme Court recognized the continued vitality of Raffel, it nevertheless

noted that state courts “remain[] free to formulate evidentiary rules defining the situations

in which silence is viewed as more probative than prejudicial.”11 This Court has done so

on several occasions.12        The United States Supreme Court and many commentators




11
     Jenkins, 447 US at 240.
12
   See, e.g., People v Cetlinski (After Remand), 435 Mich 742, 760; 460 NW2d 534
(1990) (noting that the Court has “adopted the evidentiary rule that nonverbal conduct by
a defendant, a failure to come forward, is relevant and probative for impeachment
purposes when the court determines that it would have been ‘natural’ for the person to
have come forward with the exculpatory information under the circumstances”), citing
People v Collier, 426 Mich 23; 393 NW2d 346 (1986).



                                             5
recognize that “every post-arrest silence is insolubly ambiguous . . . .”13 As one court has

observed:

                 The right of an accused not to testify is absolute; he may not even be
         called as a witness unless he so chooses. To view his decision not to testify
         as being inconsistent with a later exculpatory statement would be to
         presume that the exercise of a right that is inextricably linked to the
         presumption of innocence constitutes conduct that can be viewed as
         inconsistent with innocence. Although such cross-examination might not
         be unconstitutional, the constitutional context in which the privilege is
         initially asserted strips it of the evidentiary value it might otherwise be
         thought to have.[14]

Thus, while part III(D) of the majority opinion thoroughly discusses the policy rationales

for why the Fifth Amendment does not bar impeachment with prior silence when a

defendant chooses to testify, it is important to note that equally compelling countervailing

policies have led many courts to exclude such impeachment evidence given its potential

to be highly prejudicial. The majority correctly leaves it for the trial court to decide in

the first instance whether testimony concerning defendant’s silence at the first trial is

admissible as an evidentiary matter, including an inquiry into whether its admission

would be substantially more prejudicial than probative under MRE 403.

         With these observations, I do not join part III(D) or footnote 9, but otherwise

concur with the Court’s excellent opinion.

                                                          Bridget M. McCormack

13
  Doyle, 426 US at 617. See also United States v Hale, 422 US 171, 176; 95 S Ct 2133;
45 L Ed 2d 99 (1975) (“In most circumstances silence is so ambiguous that it is of little
probative force.”). See generally Thompson, Methinks the lady doth protest too little:
Reassessing the probative value of silence, 47 U Louisville L R 21 (2008).
14
     Commonwealth v Jones, 229 Pa Super 236, 245-246; 327 A2d 638 (1974).



                                               6
                               STATE OF MICHIGAN

                                       SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellant,

v                                                                 No. 144696

RAYFIELD CLARY,

                Defendant-Appellee.


CAVANAGH, J. (concurring in part and dissenting in part).
         I concur in the result that defendant is entitled to a new trial.

         As Justice MCCORMACK aptly notes, the United States Supreme Court’s 1926

decision in Raffel v United States, 271 US 494; 46 S Ct 566; 70 L Ed 1054 (1926),

appears to present an anomaly in light of the due process and fundamental fairness

concerns subsequently articulated in Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed

2d 91 (1976). “Under the rationale of Doyle, due process is violated whenever the

prosecution uses for impeachment purposes a defendant’s post-Miranda[1] silence.”

Brecht v Abrahamson, 507 US 619, 629; 113 S Ct 1710; 123 L Ed 2d 353 (1993)

(emphasis added).2 This is because it is fundamentally unfair to assure a defendant that

1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
  But, see, Brecht, 507 US at 628-629 (finding a Doyle violation on the basis of the state’s
general references to the “petitioner’s failure to come forward with his version of events
at any time before trial”); Jones v Indiana, 265 Ind 447, 451; 355 NE2d 402 (1976)
(explaining that there is no difference between a defendant’s continued silence after an
immediate postarrest custody and throughout the pretrial period because a “defendant
he has the right to remain silent and, thus, that his silence will not be used against him,

only to later breach that promise by “using [the defendant’s] silence to impeach an

explanation subsequently offered at trial.” Id. at 628 (citations and quotation marks

omitted). On the basis of this rationale, I agree with Justice MCCORMACK that to hold

that the prosecution, under these facts, may impeach a defendant on the basis of his or her

failure to testify at a previous trial presents an “analytical Gordian knot.”

       Aside from the constitutional issues raised in this case, I agree with Justice

MCCORMACK that there are matters that weigh against a broad rule in favor of the

admissibility of a defendant’s silence as an evidentiary matter.

       As Justice MCCORMACK notes, Raffel held that “the Fifth Amendment is not

violated when a defendant is impeached on the basis of his prior silence.” Jenkins v

Anderson, 447 US 231, 237 n 4; 100 S Ct 2124; 65 L Ed 2d 86 (1980). Yet, Raffel “did

not focus on the question whether the cross-examination there involved was in fact

probative in impeaching the defendant’s credibility.” Grunewald v United States, 353 US

391, 420; 77 S Ct 963; 1 L Ed 2d 931 (1957). Indeed, although the United States



who receives Miranda warnings is advised that he may remain silent; he is not warned
that the right continues only while he is in the custody of the arresting officers” and
“[p]enalizing the accused for silence before trial is no less punishment for the exercise of
a right than penalizing silence at the time of arrest”), cited with approval by the majority
opinion in People v Collier, 426 Mich 23, 36 n 3; 393 NW2d 346 (1986); Neely v State,
86 Wis 2d 304, 318; 272 NW2d 381 (Wis App, 1978) (stating that “the Doyle rationale
equally applies to a comment on any pre-trial silence” because to say that the
Constitution gives a defendant the right to remain silent, but then allow the prosecution to
use the defendant’s exercise of that right against him or her, is just as fundamentally
unfair as when that right is communicated in giving Miranda warnings), disapproved of
in part on other grounds in Neely v State, 97 Wis 2d 38, 292 NW2d 859 (Wis, 1980).



                                              2
Supreme Court has indicated that states are “free to formulate evidentiary rules defining

the situations in which silence is viewed as more probative than prejudicial,” Jenkins, 447

US at 240,3 the United States Supreme Court has also reiterated that “in no case has [it]

intimated that there is such a basic inconsistency between silence at one trial and taking

the stand at a subsequent trial that the fact of prior silence can be used to impeach any

testimony which a defendant elects to give at a later trial,” Stewart v United States, 366

US 1, 5; 81 S Ct 941; 6 L Ed 2d 84 (1961) (emphasis added).4 Accordingly, the fact that

impeaching a defendant with his or her silence at a prior trial might be constitutional does

not mean that, as an evidentiary matter, a defendant’s prior silence is automatically

admissible in a later trial when a defendant elects to waive his constitutional and statutory

rights in favor of testifying.5 See People v Cetlinski (After Remand), 435 Mich 742, 773;

460 NW2d 534 (1990) (LEVIN, J., concurring in part and dissenting in part); Jenkins, 447

US at 240-241. Rather, “whether the challenged testimony [is] admissible under an

3
  See, also, Fletcher v Weir, 455 US 603, 607; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (“A
state is entitled . . . to leave to the judge and jury under its own rules of evidence the
resolution of the extent to which postarrest silence may be deemed to impeach a criminal
defendant’s own testimony.”)
4
  See, also, Stewart, 366 US at 6 n 13, 7 n 14 (rejecting the notion that a prior refusal to
testify can be used to impeach a defendant’s general credibility and explaining that “[i]f
the failure to testify at a previous trial were to amount to evidence that testimony at a
subsequent trial was feigned or perjurious, the fact of failure to testify would always be
admissible”); Grunewald, 353 US at 419-420 (explaining that Raffel should not be read
“as establishing as a matter of law that . . . a prior claim of privilege with reference to a
question later answered at the trial is always to be deemed to be a prior inconsistent
statement, irrespective of the circumstances under which the claim of privilege was
made”).
5
    US Const, Am V; Const 1963, art 1, § 17; MCL 600.2159.



                                             3
evidentiary analysis, [is] a question that must be answered whenever the prosecutor seeks

to elicit a defendant’s . . . silence.” Cetlinski, 435 Mich at 775 (LEVIN, J., concurring in

part and dissenting in part) (emphasis added). See, also, Grunewald, 353 US at 418-419.

In cases such as this, the issue thus includes whether a defendant’s invocation of a

constitutional privilege involves such inconsistency with a defendant’s later trial

testimony that impeachment by reference to a defendant’s prior silence is probative.

       Notably, in other contexts, a majority of this Court has explained that

impeachment with a defendant’s silence “should be approached with caution.” People v

Collier, 426 Mich 23, 34; 393 NW2d 346 (1986) (citation and quotation marks omitted).

I agree because, in my view, “whether or not the . . . Constitution is implicated, a

defendant’s silence is not generally admissible”; a defendant’s silence may not be

“routinely admitted” without “carefully examin[ing] the evidentiary admissibility of a

defendant’s . . . silence . . . .” Cetlinski, 435 Mich at 788-789 (LEVIN, J., concurring in

part and dissenting in part). And “[a] defendant’s ‘silence’ does not necessarily mean

anything,” generally rendering it of little probative significance and decreasing its

potential for advancing the truth-seeking process.       Id. at 776.    See, also, People v

Conyers, 52 NY2d 454, 458-459; 438 NYS2d 741; 420 NE2d 933 (1981). Accord

United States v Zaccaria, 240 F3d 75, 79 (CA 1, 2001) (“[S]ilence per se generally has

little or no probative value for impeachment purposes.”).6 See, also, MRE 401 and MRE

403.


6
  Accordingly, to the extent that the majority opinion can be read to suggest that a
defendant’s silence is per se highly probative, that a defendant’s silence at a previous trial
is “plain evidence of guilt” that should not be suppressed, or that the use of a defendant’s


                                              4
       Indeed, there might be possible explanations for a defendant’s failure to testify,

even if entirely innocent of the charge against him, including “[e]xcessive timidity,

nervousness when facing others and attempting to explain transactions of a suspicious

character, and the offences charged against him,” or simply relying “upon the

presumption of the law that [the defendant] was innocent of the charge, and leav[ing] the

government to establish his guilt in the best way it could.” Wilson v United States, 149

US 60, 65-66; 13 S Ct 765; 37 L Ed 650 (1893).7 Jurors, however, are “not necessarily

sensitive to the . . . alternative explanations for a defendant’s [previous] silence” and thus

may draw an “unwarranted inference of guilt” resulting in a substantial risk of prejudice

to a criminal defendant. Conyers, 52 NY2d at 459. See, also, Grunewald, 353 US at

424. As the United States Supreme Court has recognized, “[t]oo many, even those who

should be better advised, view [the Fifth Amendment] privilege as a shelter for

wrongdoers. They too readily assume that those who invoke it are either guilty of crime

or commit perjury in claiming the privilege.” Id. at 421 (citation and quotation marks

omitted). Accordingly, as Justice MCCORMACK notes, in this context, one jurisdiction

has explained that, although cross-examining a defendant with his or her prior silence


silence as an impeachment tool should be applied with “special vigor,” I must part ways
with the majority. Also, I simply note that Raffel “assumed that the defendant’s failure to
testify at the first trial could not be used as evidence of guilt in the second trial[.]”
Grunewald, 420 n 32 (emphasis added).
7
  See, also, Commonwealth v Jones, 229 Pa Super 236, 246-247; 327 A2d 638 (Pa Super,
1974) (explaining that there may be “reasons why a defendant might choose not to
testify[,] such as fear of being confused or misunderstood or a general inability to
articulate”); Doyle, 426 US at 617 (“[E]very post-arrest silence is insolubly ambiguous
because of what the State is required to advise the person arrested.”).



                                              5
“‘might not be unconstitutional, the constitutional context in which the privilege is

initially asserted strips it of the evidentiary value it might otherwise be thought to have.’”

Ante at 6, quoting Jones, 229 Pa Super at 245-246.8 Given that the evidentiary matter in

this case presents “grave constitutional overtones,” I generally find this rationale

persuasive. Grunewald, 353 US at 423.

       In sum, although Raffel and the Fifth Amendment of the United States

Constitution may permit impeachment with a defendant’s prior silence in this context, a

defendant’s silence must still be admissible under the Michigan Rules of Evidence,

including MRE 403.


                                                         Michael F. Cavanagh



       VIVIANO, J., took no part in the decision of this case.




8
  Cf Cetlinski, 435 Mich at 790 (LEVIN, J., concurring in part and dissenting in part)
(addressing the evidentiary value of pre- and postarrest, pre-Miranda silence and stating
that the use of a defendant’s silence for impeachment purposes “cannot be justified in the
absence of unusual circumstances” because “evidence of a defendant’s . . . silence may
have a disproportionate impact upon the minds of the jurors and . . . the potential for
prejudice inherent in such evidence outweighs its marginal probative worth”), quoting
Conyers, 52 NY2d at 459.



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