PEOPLE v CETLINSKI (AFTER REMAND)
Docket No. 81176
Supreme Court of Michigan
September 11, 1990
435 Mich 742
Argued March 9, 1988 (Calendar No. 11)
In an opinion by Justice BOYLE, joined by Chief Justice RILEY and Justices BRICKLEY and GRIFFIN, the Supreme Court held:
Use for impeachment purposes of a defendant‘s prior statement, including omissions, given during contact with the police prior to arrest or accusation does not violate the defendant‘s rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution.
1. Use of a defendant‘s prearrest, pre-Miranda statements, including omissions, for impeachment purposes is a question of relevancy, an evidentiary matter. For impeachment purposes, failure to assert a material fact when formerly discussing the subject matter is an assertion of the nonexistence of the fact. Omissions from an affirmative voluntary response to questions about the same subject matter about which the defendant testified at trial do not constitute silence. Rather, they are prior inconsistent statements that can be used for impeachment. Such omissions are nonverbal conduct that is to be considered an assertion of the nonexistence of a fact related in trial testimony if a rational juror could draw an inference of inconsistency. An evidentiary approach to the use of such statements, including omissions, will adequately protect the policy
REFERENCES
Am Jur 2d, Witnesses § 527.
See the Index to Annotations under Confessions and Admissions; Impeachment of Witnesses.
2. In this case, the Court of Appeals erred in characterizing and analyzing the issue under a constitutional approach, in concluding that the Fifth Amendment precluded cross-examination of the defendant, and in reversing his conviction. The issue, rather, concerns the permissibility of cross-examination regarding the defendant‘s statements, including omissions, in light of the fact that he voluntarily made them to the police during a six-month investigation. The prosecutor did not ask the jury to infer guilt from the defendant‘s silence. Thus, the prosecutor‘s cross-examination did not violate the defendant‘s Fifth Amendment right not to incriminate himself. The use at trial of his prearrest, pre-Miranda statement for impeachment purposes was permissible under the federal and Michigan Constitutions.
Justice LEVIN, joined by Justices ARCHER and CAVANAGH, concurring in part and dissenting in part, concurred in the reversal of the judgment of the Court of Appeals because any error did not prejudice Cetlinski‘s defense and therefore does not require reversal of his conviction.
It is not necessary for decision in this case to decide whether People v Bobo should be construed coextensively with the minimal requirements of the United States Constitution. The stated reason for so deciding is to eliminate confusion in the law, but the Court‘s decision does not eliminate confusion.
It is not necessary for decision in this case to decide whether the prosecutor‘s cross-examination violated Cetlinski‘s rights under the Due Process Clause of the Fourteenth Amendment. It is inappropriate for the Court to decide that question without affording Cetlinski an opportunity to develop an evidentiary record that would substantiate a claim of error. When Cetlinski was tried, the exclusion of evidence of a defendant‘s silence did not depend on the factors that are dispositive in an analysis under the Due Process Clause.
A defendant‘s failure to volunteer information during a pretrial statement is admissible if there is some basis on which it can be said with a reasonable degree of certainty that the failure to volunteer information is probative with respect to some fact that tends to impeach the defendant‘s trial testimony. To be admissible as a prior inconsistent statement, a defendant‘s silence must have an assertive quality.
The more a defendant said about a given subject, the greater is the likelihood that the defendant‘s failure to volunteer particular information is probative. The more narrowly a de-
If there is no reason to expect a person to have asserted a fact if the fact did exist, evidence of the person‘s failure to assert the fact during a pretrial statement does not tend to prove that the fact did not exist.
Reversed; conviction reinstated.
CRIMINAL LAW - TRIAL - IMPEACHMENT.
Use for impeachment purposes of a defendant‘s prior statement, including omissions, given during contact with the police prior to arrest or accusation does not violate the defendant‘s rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution (
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Nathan T. Fairchild, Prosecuting Attorney, and Jonathan L. Poer, Assistant Prosecuting Attorney, for the people.
John R. Minock for the defendant.
AFTER REMAND
BOYLE, J. The issue raised in this case is whether People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), precludes cross-examination regarding a prior statement, including omissions, to a police officer.1
In People v Cetlinski2 the Court of Appeals held on initial appeal that the Fifth Amendment precluded asking the defendant during cross-examination why he had not told investigating officers, in the course of prearrest voluntary conversations with them regarding the fire, that he had had a conversation with his waitress and that the wait-
Despite the fact that over the years the issue whether Bobo correctly construes the requirement of the Fifth Amendment and if not, whether the Michigan Constitution requires a higher standard has spawned a degree of conflict and confusion in the Court of Appeals,5 and despite the fact that the precise issue before us has produced a conflict in the Court of Appeals with regard to whether People v Collier or Bobo applies to prior inconsistent statements,6 Justice LEVIN asserts it is not necessary in this case to reach the Fifth Amendment issue or to address the due process requirements of the Fourteenth Amendment.
In Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980),7 the United States Supreme Court held that the use of prearrest
We hold that the use for impeachment purposes of a defendant‘s prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defen-
This analysis is consistent with the United States Supreme Court‘s ruling in Jenkins. There the Court emphasized that
[i]mpeachment follows the defendant‘s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. . . . 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. 3A J. Wigmore, Evidence, § 1042, p 1056 (Chadbourn rev 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence [or statements, including omissions] is so inconsistent with present statements that impeachment by reference to such silence [or statements] is probative [of defendant‘s credibility]. [Id., pp 238-239.]
The statement of a party opponent is defined as
On this record, however, the majority is persuaded that evidentiary error, if any, was not prejudicial to the defendant. Accordingly, we reverse the decision of the Court of Appeals and reinstate the defendant‘s conviction.
I
On December 11, 1983, a fire destroyed a bar that the defendant owned and managed adjacent to the motel in which he and a woman companion lived. After almost six months of investigation, the defendant was charged with burning real property and burning insured property.
At trial the expert fire investigator‘s testimony revealed that the fire had been set intentionally by spreading kerosene throughout the bar. In addition, having found the bar locked at the time of the fire, the investigator concluded the fire was set by someone with a key to the bar. Only five people had keys to the bar, the defendant, his live-in girl friend and business partner, the bartender on duty that night, a friend who had borrowed defendant‘s car, and a waitress.
The waitress testified for the prosecution that
When defendant Cetlinski took the stand, in exculpation on direct examination, he stated while looking at the jury that he had discussed burning the bar with the waitress “as a joke.” Further, he stated that it was she who first brought up the idea, that it was her idea to check on what the cost would be, and that after about a week she told defendant her brother said he knew someone who would burn the bar if the defendant wanted it done.15 Although stating he only had joked with the waitress about burning the bar, the defendant testified that he later discussed the conversation with his girl friend and business partner, and that he agreed with her that it would be wrong. He then stated that he told his girl friend that “[W]e‘re going to go talk to [her] and tell her we don‘t want it burned. I told her [the waitress] two
This testimony served not only to rebut the waitress’ testimony, but to suggest that she committed the arson and that defendant himself had nothing to do with the burning of the bar. Other proofs showed that she was one of four people who had keys to the bar and that she was present at the time of the fire.
The defendant also described being awakened by the police at his motel room next to the bar on the night of the fire, and stated he answered what the Court of Appeals characterized as “general investigation questions” at that time, as well as at various times during the course of the investigation.16 It is undisputed that defendant gave generally exculpatory statements to the police during this period of time.
During cross-examination, the defendant testified that after the waitress suggested she knew someone who could burn the bar and that it could be made to look like a robbery, he had had a second conversation with her about a week after the first one, and it was at that time that she talked about price. Then, after his testimony established the fact that after the fire the bar looked exactly as the waitress had testified that she and the defendant had discussed it should look, the prosecutor asked the following question:
Q. Mr. Cetlinski, after the fire when you saw these things out there, why didn‘t you tell the police about this conversation [the waitress] had had with you?
A. Because it was just . . .
Defense counsel objected and, after the jury was
In response, the prosecutor argued that the defendant took the stand, testified, gave numerous voluntary statements to the police officers concerning the fire and its possible origin, and, thus, that the state had the right to inquire why defendant never told police about the conversation with the waitress. The trial judge recessed until the following morning and instructed the attorneys to research the law and that he would make a ruling at that time. The following day the court determined that on the basis of the fact that defendant talked freely to the police there was no issue of silence in the case and denied defense counsel‘s motion for mistrial.17
The prosecutor was permitted to resume questioning:
Q. Mr. Cetlinski, during the course of the investigation of this fire at your bar, you talked to the police officers a number of times; isn‘t that correct?
A. Yes.
Q. Different officers at different times?
A. Yes.
Q. During any of the course [sic] of those conversations with those officers, did you ever mention to them this conversation you had with [the waitress]?
A. No.
Q. You didn‘t tell them about that at all?
A. No.
Q. Why didn‘t you tell them about that at all?
A. I didn‘t—I forgot about it.
The prosecutor never again raised the issue with the defendant or any other witness, or made reference during closing argument to defendant‘s failure to tell police of the conversation with his employee.18 Defense counsel argued during closing argument that the prosecutor‘s question regarding the defendant‘s failure to tell police about the conversation was unfair because there was no claim that defendant failed to answer all of the questions during the investigation or that he ever lied to anyone. Further, defense counsel noted that even if the waitress’ version of the conversation was correct “she had all kind [sic] of motivation [to lie] including her fight with [the defendant‘s girl friend‘s] son. . . .”
At the conclusion of the four-day trial, the defendant was convicted by a jury of burning insured property,
On initial appeal, the Court of Appeals held that the cross-examination by the prosecutor regarding the defendant‘s “pre-arrest” failure to tell the investigating officer, “at the scene” “immediately after he and [his companion] were awakened,” about his prior conversation violated “defendant‘s constitutional right against self-incrimination” under the rule of Bobo.19 Although noting ”Bobo had
After this Court held in Collier that impeachment with “prearrest silence” was not constitutionally precluded, Cetlinski was remanded to the Court of Appeals. On remand, the Court of Appeals again reversed on the basis of Bobo. It distinguished Collier on the ground that Collier was cross-examined regarding his failure to report to the police, prior to any contact with the police, a crime of which he had allegedly been the victim. The panel interpreted Collier only as limiting the Bobo holding
“to those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers. Here, the prosecutor impeached defendant regarding his failure to report a robbery to the police. There was no questioning or mention of defendant‘s silence at or after his contact with the police.” [Citing Collier, supra, p 31. Emphasis added.]
Therefore, because “defendant [Cetlinski] was in contact with the police, and the police were ques-
in the face of accusation. “Nonutterances” are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.
* * *
Whether his silence was prior to or at the time of arrest makes little difference—the defendant‘s Fifth Amendment right to remain silent is constant. [Bobo, supra, pp 359-360. Emphasis added.]
Thus, the Court of Appeals, post-Collier, erroneously held that Bobo prevents impeachment of a testifying defendant with a prior inconsistent statement made voluntarily to the police prior to arrest and during general investigatory questioning.
II
The decision in People v Cetlinski is evidence that this Court must respond to the issues the Court of Appeals has identified and the parties have briefed and argued, and speak to an issue which has been the subject of a sixteen-year effort by the trial and appellate judges of this state: to understand and apply this Court‘s pronouncements in Bobo.
Understanding and analysis of the Bobo issue requires that we initially explain the facts, holding, and dicta of Bobo, and that we then acknowledge federal authority which casts doubt on the Fifth Amendment rationale of that opinion. The Court in People v Bobo, supra, pp 359-361, opined that the Fifth Amendment of the United States Constitution precluded any reference to a defendant‘s silence under any circumstances during a trial:21
We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. “Nonutterances” are not statements. The fact
that a witness did not make a statement may be shown only to contradict his assertion that he did.
* * *
What concerned the parties and what prompted our grant of leave was the propriety of using the fact of defendant‘s silence either as evidence of guilt or for the purpose of impeachment.
Whether his [defendant‘s] silence was prior to or at the time of arrest makes little difference—the defendant‘s Fifth Amendment right to remain silent is constant.
* * *
It is unimportant whether the accuser be a police officer or not. Manifestly whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the Fifth Amendment guarantees that his silence may not be used against him.
Although the factual context of the holding in Bobo was the prosecutor‘s use of the defendant‘s prearrest silence during contact with a police officer to impeach the defendant‘s exculpatory testimony at trial, the Court of Appeals subsequently applied the rationale of Bobo to both pre- and postarrest silence, to substantive and impeachment use of “silence,” and to contact with police officers or citizens.22
This Court‘s first consideration of the question whether the federal or the state constitution governs the permissible use of a criminal defendant‘s silence came thirteen years after Bobo and after a substantial body of federal precedent had construed the Fifth Amendment.23 People v Collier,
The Court recognized that the United States Supreme Court had held that the Fifth Amendment did not preclude cross-examination of a testifying defendant with prearrest silence, Jenkins v Anderson, supra, and declined to find a violation of either due process or self-incrimination protection under the Michigan Constitution:
For us to find that this case invokes the Michigan Constitution would require us to differ with the Jenkins majority‘s analysis in a prearrest silence impeachment situation involving a factual setting less favorable to the defendant than that in Jenkins. Not only is there no federal Fifth Amendment precedent for such a finding, we are also aware of no other state that has taken such a step in the interpretation of its own self-incrimination provision. We have been offered no satisfactory arguments why we should be the first to use our own constitution to so enlarge upon existing Fifth Amendment jurisprudence.
* * *
We conclude that to the extent Bobo is viable it is confined to impeachment for and comment on silence at the time of arrest in the face of accusation. [Collier, supra, pp 38-39. Emphasis added.]
In Collier, we concluded that the issue of prearrest silence is one of relevancy and that the Court of Appeals had erroneously construed Bobo. However, while our holding in Collier limited Bobo to impeachment for and comment on silence at the time of arrest in the face of accusation, this Court did not overrule Bobo, but rather found Bobo inapplicable on the facts. Thus, a continuing question exists with regard to whether Bobo is to be
III
People v Cetlinski is the only case before us in which this Court has asked the Court of Appeals to redetermine the admissibility of a defendant‘s statements, including omissions, in light of the limitation of Bobo set forth in People v Collier.26 The Court of Appeals reversed the defendant‘s conviction on the basis of its finding that the use at trial of the defendant‘s prearrest, pre-Miranda “silence” for impeachment purposes was improper under the rule of Bobo.27
Consistent with our rationale in Collier, we conclude that an evidentiary approach to the use of a defendant‘s prearrest, pre-Miranda statements, including omissions, will adequately protect the policy interest in foreclosing the factfinder from unfair inferences of guilt. We therefore construe Bobo as being coextensive with the Fifth Amendment of the United States Constitution and the due process analysis of Doyle v Ohio, 426 US
immediately after defendant was awakened by the police the night of the fire.
People v Collier 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.31 Because a defendant has no duty to come forward, the Court observed that his failure to do so was so ambiguous that it did not in and of itself allow a trial
The issue in this case concerns the permissibility of cross-examination about defendant‘s statements, including omissions, in light of the fact that the defendant voluntarily gave those statements to the police during a six-month investigation. A majority of the justices are persuaded that the record is insufficient to permit us to determine whether there was evidentiary error33 because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier. Therefore, we
CONCLUSION
The Court of Appeals erred in concluding that the
Finally, although the defendant objected to the impeachment use of his prearrest, pre-Miranda statements on constitutional ground, but not on an evidentiary basis, error, if any, was not prejudicial to the defendant. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the defendant‘s conviction.
RILEY, C.J., and BRICKLEY and GRIFFIN, JJ., concurred with BOYLE, J.
LEVIN, J. (concurring in part and dissenting in part). Edward Cetlinski was convicted of arson.1 The issue presented concerns the impeachment2
The Court of Appeals reversed Cetlinski‘s conviction on the ground that the impeachment use of his failure to volunteer that he had discussed the possibility of hiring someone to set fire to his property violated the rule stated in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). Because we conclude that any error did not prejudice Cetlinski‘s defense, we concur in the reversal of the judgment of the Court of Appeals.
I
Cetlinski owned a bar. The bar burned down. Cetlinski was convicted of arson.
During the prosecution‘s case in chief, Gloria Rodriquez, one of Cetlinski‘s former employees, testified that Cetlinski had on one occasion discussed with her the possibility of setting fire to the bar and that he had asked her if she knew anyone who would set the fire.3 Rodriquez added that on
On direct examination, Cetlinski acknowledged the conversation with Rodriquez whom he characterized as the initiator. He testified generally that he was not serious about hiring someone to set fire to the bar. Cetlinski said that on several occasions he told Rodriquez to forget about setting a fire.
On cross-examination, Cetlinski characterized as a joke the conversation during which he had asked if Rodriquez knew anyone who would set a fire. He added that it was out of curiosity that he asked Rodriquez to make inquiries about hiring an arsonist. The prosecutor asked Cetlinski about his failure to mention the conversation with Rodriquez during his discussions with police and fire investigators.
The prosecutor‘s initial question was directed to discussions with investigators immediately after the fire.4 Cetlinski‘s lawyer objected and moved for a mistrial; the motion was denied and the objection was overruled. The prosecutor then resumed his previous line of inquiry. This time, his questions covered a broader time frame.5
II
We agree with the majority that the decision of the Court of Appeals should be reversed. Any error in the prosecutor‘s cross-examination did not prejudice Cetlinski‘s defense and therefore does not require reversal of his conviction.
Rodriquez’ testimony regarding her discussion with Cetlinski was properly introduced in the prosecution‘s case in chief. Cetlinski testified on direct examination that he was not serious about hiring someone to set fire to his bar, and on cross-examination that the conversation with Rodriquez was a joke. The prosecutor then brought out that Cetlinski had not mentioned the conversation to the police. Cetlinski‘s explanation for having failed to do so was that he “forgot about it.”
If the jurors believed Cetlinski‘s testimony that the conversation was intended as a joke, they would not have expected him to have mentioned the conversation to the police and they would not have drawn any adverse inference from his failure
On the facts of this case, we conclude that any error does not require reversal.11 No more needs to be said to decide this case.
III
Although the majority acknowledges that resolution of the merits is not necessary for decision in the instant case,12 it nonetheless chooses to selectively address other “issues.”
A
The majority in effect overrules People v Bobo, holding that Bobo is henceforth to be construed as a superfluous reference to the minimal require
We will not belabor stare decisis. A majority of the Court can overrule a precedent for a good reason, a bad reason, or no reason at all. The majority‘s stated reason for overruling Bobo is to eliminate confusion in the law. That might be a persuasive reason for overruling Bobo if the majority‘s decision eliminated or reduced confusion instead of replacing one form of possible confusion with another.
We continue to believe that “because the United States Supreme Court does not require us to do so” is not a valid reason for overruling precedents of this Court that provide greater protection to accused persons than the minimum protection mandated by the federal Constitution. When the United States Supreme Court rules that a particular state court practice does not violate the
The notion that this Court should automatically retreat from its precedents to the extent it can do so without running afoul of the minimum requirements of the
B
The majority also declares that the prosecutor‘s cross-examination did not violate Cetlinski‘s rights under the
When a defendant remains silent after the receipt of Miranda warnings, the Due Process Clause generally bars the impeachment use of the defendant‘s silence. Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).17 Thus, if the prosecutor‘s inquiry on cross-examination referred to post-Miranda discussions with police and fire investigators, there might have been a constitutional violation.
The record is unclear whether, and if so, when, Cetlinski received Miranda warnings during his various conversations with law enforcement personnel.
Factual findings whether, and if so, when, Cetlinski received Miranda warnings should precede a determination of whether the prosecutor‘s cross-examination referred to both pre- and post-Miranda “silence” and was therefore impermissibly broad.18 Without such factual findings, there is not
The majority declares, without factual findings, that the prosecutor‘s cross-examination did not violate Cetlinski‘s rights under the Due Process Clause. The majority begins with the purposeful assumption that the prosecutor‘s inquiry was limited to the pre-Miranda time frame,19 an assumption that the majority seeks to justify on the bases that the record is unclear whether, and if so, when, Cetlinski received the Miranda warnings,20 and that the Court of Appeals failed to base its decisions on the receipt of those warnings.21
The majority chooses to ignore that when Cetlinski was tried, the exclusion of evidence of a defendant‘s pretrial silence did not depend on whether the Miranda warnings had been given.22 There was thus no reason for Cetlinski or the prosecutor to have developed a factual record regarding the warnings.
Nor was there reason for the Court of Appeals to predicate its decisions on the receipt of Miranda warnings. The Court of Appeals initial decision was issued before this Court limited the scope of
A claim of Doyle error may properly be rejected
A defendant should not be denied an opportunity to develop an evidentiary record that would substantiate a claim of Doyle error on the basis of a “failure” to develop such a record where the trial occurred before this Court‘s declaration in the instant case that Michigan law is coextensive with the minimal requirements of the Due Process Clause of the
Since the Court chooses to hold litigants strictly liable for their lack of prescience, the Court should at least be consistent. It is remarkable that the
To be sure, the record as it now stands tends to support the contention that the cross-examination was not Doyle error.29 But the record as it now stands similarly tends to support the contention that the challenged testimony was inadmissible under an evidentiary analysis.30
C
Because the Court has decided to treat the instant case as not involving post-Miranda “silence,” we agree that the Court is not called on to decide the applicability of Doyle to the “partially silent” defendant.
IV
The impeachment use of a defendant‘s pretrial silence raises important issues under conventional
A
The majority recognizes that an evidentiary analysis applies when it is sought to use a defendant‘s silence for impeachment.31 Indeed, this Court remanded this very case for reconsideration in light of Collier.32 The majority avoids addressing the merits of the evidentiary question in the instant case on the basis that any error does not require reversal of Cetlinski‘s conviction.33
The majority says, and we agree, that “the record is insufficient to permit us to determine whether there was evidentiary error because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier.”34
Ordinarily, we would not fault the majority‘s reticence. A definitive pronouncement on the evidentiary question is, we all agree, unnecessary for decision in the instant case. However, in light of the majority‘s decision to utilize this case as a platform for the issuance of “definitive” pronouncements on other aspects of substantive law, the majority might more properly go on to say whether the challenged testimony was admissible
The majority asserts that it is further limiting, actually eliminating, Bobo to rectify confusion and uncertainty.35 In the process, it has put in question, if not eliminated, much of the Michigan case law concerning the admissibility of silence. Instead of clarity and certainty, the majority leaves a vacuum in the wake of today‘s decision.
B
To be admissible, evidence must be “relevant” in that it “makes ‘the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ”36 There are accordingly two components of “relevance,” and if either is not present, the evidence is not admissible. The evidence must be probative,37 and it must be material.38
Although there are a number of means by which a witness’ testimony may be impeached, the impeachment use of “silence” is customarily justified on the basis that the “silence” amounts to a prior inconsistent statement. Where this is the theory of impeachment, evidence of a defendant‘s “silence“—standing alone or in conjunction with other evidence—is not admissible unless it tends to prove that the defendant by his silence made a
It is the probativeness prong that raises the most troublesome questions when a defendant‘s “silence” is used for impeachment purposes. A defendant‘s “silence” does not necessarily mean anything. There will often be a large number of possible explanations for a defendant‘s failure to provide information.
To be admissible as a prior inconsistent statement, it must be possible to conclude with some degree of certainty that a likely explanation for the defendant‘s “silence“—among the many available explanations—is that the defendant did not assert a particular fact to which he testified at trial because that fact did not exist.
Stated differently, if there is no reason to expect a person to have asserted a fact if the fact did exist and no reason to expect a person to have asserted the fact if the fact did not exist, evidence of the person‘s failure to assert the fact does not tend to prove the fact did not exist.
In Collier, this Court held that the impeachment use of a defendant‘s “prearrest silence” does not violate the Self-Incrimination Clause of the Michigan Constitution,
Collier involved the impeachment use of a defendant‘s prearrest failure to come forward and inform the police that he had been the victim of an armed robbery.41 The Court held that Collier‘s failure to report the crime was admissible to impeach his trial testimony because, under the circumstances related by him, it would have been natural to report the crime.42 Since it would have been natural for Collier to have come forward, his failure to do so had probative value to impeach his testimony that he was the victim of a crime.
In Collier, the defendant‘s testimony was impeached with his failure to seek out the police and inform them that he had been the victim of a crime. Cetlinski‘s testimony was impeached with his failure to volunteer information that would have tended to incriminate him with respect to the crime being investigated. The only apparent differ
Another analytical framework was applied in People v Cole, 411 Mich 483; 307 NW2d 687 (1981). Cole was charged with assault with intent to commit murder. She told the police that when she shot the victim, she believed he was attempting to arm himself with a metal dog stake. On direct examination, however, Cole testified that she thought the victim was attempting to arm himself with a gun. The prosecutor cross-examined Cole with respect to her prior inconsistent statement.
This Court held that “the cross-examination of the defendant with regard to her prior inconsistent statement was permissible.”43 The Court distinguished Bobo on the ground that Cole “had made a statement which conflicted with her testimony at trial.”44 The Court also quoted from Anderson v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 222 (1980), where the United States Supreme Court—holding that the impeachment use of a defendant‘s prior inconsistent statement does not violate the rule stated in Doyle—said that “[a]s to the subject matter of his statements, the defendant has not remained silent at all.”45
In Cole, the defendant‘s testimony was impeached with a prior statement that was actually inconsistent with her trial testimony. Cetlinski‘s testimony was not impeached with a prior statement that was actually inconsistent with his trial testimony. His testimony was impeached with his
Although Cetlinski did not make a statement that was actually inconsistent with his trial testimony, that does not render Cole inapplicable. Similarly, although Cetlinski made statements to law enforcement personnel, that does not render Collier inapplicable. Rather, Cole and Collier occupy two ends of a continuum. Whether a given case is more like Cole or more like Collier will depend on the facts of the case.
The majority says that “omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute ‘silence.’ ”46 We agree that whether the defendant made prior statements concerning “the same subject matter” as his testimony may be an important factor in determining the admissibility of the defendant‘s failure to mention the facts to which he testifies at trial. The difficulty lies in determining whether a pretrial “statement” concerns “the same subject matter” as subsequent trial testimony.47
The majority also says that “the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact.”48 Although some of the authority cited by the majority does not appear to support the proposition for
There are no bright-line rules for determining the admissibility of a defendant‘s failure to volunteer information during a pretrial statement. The primary consideration is whether there is a basis on which it can be said with a reasonable degree of certainty that the defendant‘s failure to volunteer information is probative with respect to some fact that tends to impeach his trial testimony. The defendant‘s “silence” must have an assertive quality.
Two attributes of a defendant‘s pretrial statements may be germane to this inquiry: the “quantity” of the statements, and their “quality.” The more a defendant said about a given subject—the more his statements purported to be a complete description of a given event—the greater is the likelihood that the defendant‘s failure to volunteer particular information is probative. Likewise, the
C
If evidentiary error would require reversal of Cetlinski‘s conviction, it would indeed be appropriate to remand “because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier.”50 “For the benefit of the bench and bar,” we consider, in light of the demise of Bobo, the admissibility of Cetlinski‘s failure during discussions with police and fire officials to mention his conversation with Rodriquez.
On the present record, we would hold that Cetlinski‘s failure to mention the conversation did not have probative value because it would not have been natural for Cetlinski to have volunteered the information.51 We would hold, in agreement with the Court of Appeals, that the prosecutor‘s cross-examination was improper.52
The present record contains nothing more than general testimony that Cetlinski engaged in conversations with police and fire investigators. There is little specific evidence about Cetlinski‘s statements during those discussions. There is no evidence that Cetlinski was asked a question, or volunteered information, regarding any conversation with Rodriquez. Nor is there any evidence
On this record, the probative value of Cetlinski‘s failure to mention the conversation with Rodriquez is not enhanced by his pretrial statements. This case presents a situation like that in Collier where the defendant‘s failure to come forward with information—not prior “statements, including omissions“—was the basis for the prosecutor‘s impeachment.
Cetlinski first spoke with law enforcement personnel while his bar was still ablaze. During this questioning, Trooper Bowman asked Cetlinski whether he had insurance on the bar and whether he was behind on his taxes or other payments. Under the circumstances, it would not have been natural for Cetlinski to spontaneously assert that “five or six months ago I asked someone to look into hiring an arsonist to burn my bar, but I was only joking.”53
Cetlinski‘s “exculpatory” version of the conversation with Rodriquez was highly incriminatory. An innocent person is no more likely to volunteer self-incriminating information than a guilty person. Cetlinski‘s failure to mention the conversation had little or no probative value with respect to whether the conversation actually occurred as described in his testimony.54
V
The majority in effect overrules People v Bobo by holding that this Court‘s decision in that case is
A
The decision in Bobo was based on constitutional, evidentiary, and natural law concerns.
With respect to the federal constitutional privilege against self-incrimination, the Court said that “whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the
Bobo also relied, however, on this Court‘s pre-Miranda decision in People v Bigge, 288 Mich 417; 285 NW 5 (1939).
Bobo also was predicated on evidentiary principles. The Court in effect said that evidence of a defendant‘s pretrial silence is not admissible as a prior inconsistent statement or as the admission of a party-opponent.60 The Court thus appears to have concluded that silence is not an assertion that the events did not occur in the manner in which the defendant later testified.61
The Court also drew upon nonlegal, yet authoritative, texts. The Court observed that the rule against the evidentiary use of a defendant‘s silence ” ‘has higher sanction than mere judicial precedent,’ ” and illustrated by quoting from the New Testament.62
The majority overrules Bobo in response to these developments in
The invalidation of one of the several rationales for the decision in Bobo does not justify the elimination without further explanation of the rule there stated. The majority does not explain why the other bases of the Bobo decision were incorrect or insufficient to support the rule stated in Bobo.64
B
The majority‘s decision implicates a wide array of issues not presently before the Court.
The instant cases do not involve:
- the substantive use of a defendant‘s failure to come forward and provide information to the police;65
- the substantive or impeachment use of a defendant‘s total silence, or failure to answer particular questions, during prearrest investigative contacts with the police;66
- the substantive use of a defendant‘s failure to make particular assertions during prearrest investigative contacts with the police;67
- the substantive or impeachment use of a defendant‘s total silence, failure to answer particular questions, or failure to make particular assertions, after the defendant has been arrested but before he has received the Miranda warnings;
- the substantive or impeachment use of a defendant‘s postarrest, post-Miranda failure to make particular assertions;68 and
- the impeachment use of a defendant‘s postarrest, post-Miranda failure to answer particular questions.69
By failing expressly to reserve these issues, the majority‘s opinion could be read as obiter dictum on a scale not seen since Bobo.70 Issues not truly before the Court are better left unanswered until they are presented in the context of actual cases.
C
By in effect overruling Bobo, the majority effectively eliminates much of the case law regarding the admissibility of a defendant‘s silence. Although the majority says that an evidentiary analysis must be applied when determining the admissibility of a defendant‘s pretrial silence,72 the majority nonetheless chooses not to apply an evidentiary analysis in this case.
Nevertheless, trial judges and the Court of Appeals are obliged to carefully examine the evidentiary admissibility of a defendant‘s pretrial silence because whether or not the United States Constitution is implicated, a defendant‘s silence is not generally admissible.
To suggest otherwise would be a significant step toward a transformation of the criminal justice system. It is fundamental that our legal system is adversarial, not inquisitorial. In a criminal prosecution, the state must prove its case and overcome the presumption of innocence without involuntary assistance from the defendant.
When a person is questioned during a police investigation, he has the choice of volunteering information and answering questions, or of remaining silent. If he chooses to “coöperate,” his statement can be used against him at trial as substantive evidence of guilt or for impeachment purposes. Given the potentially adverse consequences of making a statement, it is understand
If a defendant‘s silence during police questioning were routinely admitted without adequate inquiry, a person under investigation would have become unable to avoid providing grist for the prosecutor‘s mill. What he says could be used against him and what he does not say could be used against him.73 The majority presumably does not take such a drastic step toward transforming the criminal justice system from adversarial to inquisitorial.74
D
Notwithstanding the intervening developments in
This was the approach of the New York Court of Appeals, which relied on evidentiary principles alone78 to support a general prohibition of the use of a defendant‘s pretrial silence, concluding:
Because evidence of a defendant‘s pretrial silence may have a disproportionate impact upon the minds of the jurors and because the potential for prejudice inherent in such evidence outweighs its marginal probative worth, we conclude that the use of such evidence for impeachment purposes cannot be justified in the absence of unusual circumstances . . . . [People v Conyers, 52 NY2d 454, 459; 438 NYS2d 741; 420 NE2d 933 (1981) (Conyers II).]79
CAVANAGH and ARCHER, JJ., concurred with LEVIN, J.
Notes
The issue in the companion case of People v Sutton (After Remand), 436 Mich 575; - NW2d - (1990), concerns the impeachment use of Sutton‘s failure to come forward and inform the police that he had shot someone but that it was an accident, and of his postarrest, post-Miranda silence.
I would not release the opinions in this case until the Court is prepared to release the opinions in the companion cases.In Rodriquez’ account, Cetlinski described how the fire should be set. In Cetlinski‘s version, such details were not discussed. The manner in which the fire was actually set corresponded to the description allegedly given by Cetlinski.
Q. Mr. Cetlinski, after the fire when you saw these things out there, why didn‘t you tell the police about this conversation [the waitress] had had with you?
A. Because it was just . . .
Q. Mr. Cetlinski, during the course of the investigation of this fire at your bar, you talked to the police officers a number of times; isn‘t that correct?
A. Yes.
Q. Different officers at different times?
A. Yes.
Q. During any of the course [sic] of those conversations with those officers, did you ever mention to them this conversation you had with [the waitress]?
A. No.
Q. You didn‘t tell them about that at all?
A. No.
Any undue prejudice from this use of Cetlinski‘s silence was significantly less harmful than the prejudice from Rodriquez’ testimony regarding her conversation with Cetlinski and from Cetlinski‘s admissions regarding the conversation.
See ante, pp 759-760 and 763.The approach of relying during cross-examination on a failure of a witness to tell all the details of his observations at a preliminary interview or proceeding is often used by defense counsel . . . . [Id.]
“Many lawyers, upon hearing a condemnation of advertising, will say, ‘Well the Supreme Court said it‘s all right to do it.’ The Supreme Court said no such thing. The fact that the Constitution permits particular conduct does not mean that it‘s professionally appropriate to engage in that conduct.”
See ante, p 746 (“the critical events took place prearrest and pre-Miranda and thus there could be no due process claim that the state unfairly used defendant‘s silence or omission against him at trial in violation of the implicit assurance in Miranda that silence will not be penalized“).We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent
When a defendant‘s silence occurs during a prearrest police contact, the two formulations may yield different results with respect to the applicability of Bobo. This divergence is reflected in recent decisions of the Court of Appeals. Compare People v Sligh, unpublished opinion per curiam of the Court of Appeals, decided October 14, 1987 (Docket No. 93016) (Supreme Court Docket No. 81963, now being held in abeyance) (Bobo still applies to silence during a prearrest police contact), with People v Smith, 158 Mich App 220; 405 NW2d 156 (1987) (Bobo does not apply to silence during a prearrest police contact), and People v Nimmons, unpublished opinion per curiam of the Court of Appeals, decided November 5, 1987 (Docket No. 98982) (Supreme Court Docket No. 82285, now being held in abeyance).
In the instant case, the Court of Appeals interpreted Collier as limiting Bobo to situations where the defendant‘s silence occurs during contact with police officers. See People v Cetlinski (On Remand), n 8 supra. The Court of Appeals reading of Collier is reasonable. Statements in judicial opinions are customarily construed with reference to the facts of the case in which the statements were made. See Collier, p 31 (in discussing the statement in Bobo, p 360, that “the defendant‘s
The majority asserts that “we clearly had stated in Collier, supra, p 39, that Bobo is confined to impeachment for and comment on silence at the time of arrest in the face of accusation.” Ante, p 759, n 28. See also ante, p 757. That holding was “clear” only if one ignores the facts of Collier and the other statements in the Court‘s opinion, including the Court‘s statement that “the holding of this case [i.e., Collier] is limited to only those situations where the ‘silence’ that is questioned occurs before any contact with the police.” Collier, p 32, n 2.
When exercising direct review, several federal courts have indicated that remand is appropriate. See United States v Massey, 687 F2d 1348, 1353 (CA 10, 1982), and United States v Cummiskey, 728 F2d 200 (CA 3, 1984). See also United States v Pino, 827 F2d 1429, 1432 (CA 10, 1987).
Although the prosecutor‘s initial question was apparently directed to Cetlinski‘s conversation with Trooper Bowman (see n 4), his later questions referred to all of Cetlinski‘s discussions with police and fire personnel (see n 5). Cetlinski may have received the Miranda warnings during one or more of these conversations.
The majority‘s invocation of “harmless error” is somewhat incongruous given its decision to abandon similar considerations of judicial restraint with respect to the other substantive issues in this case.
Justice LEVIN finds that
In contrast we find that on this record, we cannot decide whether there was Collier error. Ante, p 761. See also ante, p 762, n 34.[o]n the present record, we would hold that Cetlinski‘s failure to mention the conversation did not have probative value because it would not have been natural for Cetlinski to have volunteered the information. We would hold, in agreement with the Court of Appeals, that the prosecutor‘s cross-examination was improper. [Post, p 781.]
The Court rejected Collier‘s contention that the impeachment use of his prearrest silence violated the Due Process Clause of the Michigan Constitution (
When this Court decided Collier, the United States Supreme Court had already held that the impeachment use of a defendant‘s prearrest silence does not violate the United States Constitution. See Jenkins v Anderson, n 17 supra.
The alternative formulation is that the Court limited Bobo to “impeachment for and comment on silence at the time of arrest in the face of accusation.” Collier, p 39. See also n 23.
[W]e believe it is entirely natural and expected that one who has been robbed under the circumstances related by the defendant would report the crime to the police. Defendant knew the identity of the robber and the location of the robbery. It would have been natural for him to report the crime to the police, to have the assailant arrested, and to retrieve his property. [Id., pp 34-35.]
It is unimportant whether a defendant‘s failure to volunteer information during a pretrial statement is described as an “omission” or as “silence.” Admissibility is a function of relevance, not labels.
The cited passage is a mirror image of this Court‘s analysis in Collier. See ns 39-42 and the accompanying text. The failure to assert a fact is treated as an assertion of the nonexistence of the fact because it would have been natural to assert the fact, not as the majority suggests because the witness has formerly narrated on the same subject as his trial testimony.Another perplexing point is whether a failure to assert a fact it would have been natural to affirm amounts to an assertion of the nonexistence of the fact which can be used to impeach testimony in which the witness admitted the fact‘s existence. According to Wigmore such a failure to make an assertion should be admitted as a prior inconsistent statement, and the federal cases are in accord. [Citations omitted.]
[Text continues in footnote content below]
See also State v Merola, 214 NJ Super 108, 117-118; 518 A2d 518 (1986), and Silvernail v State, 777 P2d 1169, 1178 (Alas App, 1989).It would not have been “natural” for the defendant to have come forward in the circumstances of this case and produce incriminating evidence against himself. While the use of this defendant‘s pre-arrest silence would apparently not violate due process principles of the
Fourteenth Amendment . . . . his failure to come forward in these circumstances says little about the truth of his trial testimony.
The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt.
Bigge involved the substantive use of a defendant‘s failure to deny an incriminatory accusation made in his presence. We agree with the majority that the Court‘s decision in that case does not control this case. See ante, p 763, n 35. Unlike the majority, however, we would not rely on Justice POTTER‘S separate opinion—not joined by any other justice—to characterize the Court‘s decision in Bigge.
The Court also said that “[w]hether [Bobo‘s] silence was prior to or at the time of arrest makes little difference—the defendant‘s
When a defendant‘s silence occurs before the receipt of Miranda warnings, the Due Process Clause does not bar impeachment with the defendant‘s silence. Jenkins; Fletcher v Weir, n 17 supra. When a defendant remains silent after the receipt of Miranda warnings, the Due Process Clause generally does bar impeachment with such silence. Doyle v Ohio, supra.
The United States Supreme Court has thus drawn the line of demarcation at the giving of Miranda warnings. Contrary to the broad statement in Bobo, it is not constitutionally dispositive that the defendant‘s silence occurred during interrogation by the police.
The United States Supreme Court has not spoken respecting the substantive use of a defendant‘s pre-Miranda silence. Bobo‘s reliance on the
After an objection, the prosecutor continued:“[T]his person, his brother-in-law in fact, said to this witness who will testify, ‘What‘s the use of going over this matter again. Charles [the defendant] is guilty as hell.’ ”
“I haven‘t finished. Charles Bigge could have said right there if it wasn‘t true. It was his duty to have said so.” [Id., p 419.]
In Graham, the Court held that rebuttal testimony regarding the defendant‘s silence was proper because “[Graham‘s] refusal to speak is inconsistent with his testimony at trial that he was constantly attempting to explain to the police what had occurred.” Id., p 458.
The Court of Appeals found error requiring reversal in the substan
In such situations, an accused, who “chose” to give evidence in the form of pre-Miranda silence instead of a pre-Miranda statement, could “take back” the evidence by not testifying at trial. It is not unconstitutional for the state to require an individual to waive his right to testify as the price for not using against him at trial evidence that he could not avoid giving in the first place. See Jenkins v Anderson, n 17 supra. It does, however, seem contrary to fundamental principles of fairness in an adversarial system that the only way an accused can avoid giving evidence against himself is by remaining silent both before and during trial.
Even if the sole rationale for Bobo were the