Lead Opinion
This 1995 murdеr case has a long history in the Michigan and federal courts. Following the affirmance of defendant’s convictions in our state courts, the United States District Court for the Eastern District of Michigan, on habeas corpus review, ordered defendant’s release unless he was given a new trial in which his confession would be excluded from evidence. The district court ordered this result because of retained counsel’s deficient performance, not because of any police misconduct.
During pretrial hearings, the trial court also suppressed the testimony of two witnesses — street sweepers whose identities were “fruits” of defendant’s confession — unless the prosecution could show that it discovered the street sweepers’ identities from an independent source. Following the prosecution’s interlocutory appeal, the Court of Appeals agreed that the trial court should conduct an “inevitable discovery” hearing.
We also vacate the Court of Appeals endorsement of the federal district court’s errant legal analysis in holding that defendant’s confession must be excluded. The district court mistakenly applied the test from United States v Cronic,
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Two victims were robbed and fatally shot in one of the victim’s homes in Grand Blanc, Michigan. Kenneth Haywood told the police that he drove defendant and defendant’s accomplice, Idell Cleveland, to the home on
After interrogating Haywood, the police searched defendant’s home and obtained an arrest warrant. Defendant’s mother retained an attorney for him. Defendant told that attorney that, although he had been present when Cleveland robbed and murdered the victims, he did not know that Cleveland intended to rob the victims and he had not been involved in the murders. Defendant told counsel that he wanted to talk to the police about his noninvolvement in the crimes. Relying on defendant’s assertions of innocence, defense counsel advised defendant that one option would be to talk to the police and tell the truth. Counsel then arranged defendant’s surrender and accompanied him to the station, where defendant was arrested and later arraigned. Although the prosecutor told defendant and his counsel that he would not plea bargain or make any “deals,” defendant nonetheless insisted on talking to the police. Defense counsel also advised defendant that talking to the police might assist in efforts to negotiate a plea bargain. Defense counsel was present when the police furnished Miranda
During the police interrogation, defendant, contrary to what he told defense counsel, admitted that he knew Cleveland had been armed and had intended to rob the
Followingi his 1996 jury trial, defendant was convicted of two counts of felony-murder, MCL 750.316; one count of armed robbery, MCL 750.529; and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals initially affirmed defendant’s murder and felony-firearm convictions, but vacated his armed robbery conviction on double jeopardy grounds. People v Frazier, unpublished opinion of the Court of Appeals, issued February 27, 1998 (Docket No. 193891). The Court of Appeals then granted rehearing and again vacated defendant’s armed robbery conviction on double jeopardy grounds, but remanded “for a Ginther
The United States District Court for the Eastern District of Michigan conditionally granted defendant’s
The case was then set for retrial in the Genesee Circuit Court. Before trial, the trial court excluded defendant’s custodial statements for all purposes. The court, citing Wong Sun v United States,
The majority next held that the exclusionary rule and the “inevitable discovery” doctrine applied to the street sweepers’ testimony. The majority explained that the United States Supreme Court has applied the exclusionary rule to Sixth Amendment violations, and that the street sweepers’ testimony is “fruit of the poisonous tree” that must he excluded unless the prosecution can make an affirmative showing that the street sweepers’ identities would have inevitably been discovered through alternative means.
Judge TALBOT dissented from the majority’s holding that the exclusionary rule and the inevitable discovery doctrine apply to the street sweepers’ testimony. He opined that the exclusionary rule does not apply in the absence of police misconduct, and that the majority
This Court granted the prosecution’s application for leave to appeal and denied defendant’s application for leave to cross-appeal. People v Frazier,
(1) whether the exclusionary rule applies to fruits of a confession extracted not by police misconduct, but by the abandonment of retained cоunsel during the interrogation, a critical stage of proceedings, in violation of United States v Cronic,466 US 648 (1984); and, if so, (2) whether the inevitable discovery doctrine of Nix v Williams,467 US 431 (1984), applies in such circumstances; and, if so, (3) whether the exclusionary rule should be applied narrowly as suggested in United States v Ceccolini,435 US 268 (1978), when the information derived from the confession is the identity of witnesses. [477 Mich 851 .]
II. STANDARD OF REVIEW
A lower court’s application of constitutional standards is not entitled to the same degree of deference as are factual findings. People v Jenkins,
III. THE CRONIC/STRICKLAND STANDARDS
The prosecution initially urges us to ignore the federal district court’s decision and hold that the exclu
In any case,
[h]abeas corpus decisions within their scope generally are binding on the parties, on other courts, and are conclusive. ... A judgment in habeas corpus discharging the prisoner, after a final determination of the ultimate facts and of the law, is conclusive of the right to remain at liberty. Therefore, the release by federal courts of one charged in state courts is binding on the latter, and there can be no further prosecution. [4 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 147:117, p 793.]
See also Collins v Loisel,
Nonetheless, because our Court of Appeals approved of the federal district court’s legal analysis in a published opinion, we must discuss the correctness of this analysis.
Most claims of ineffective assistance of counsel are analyzed under the test developed in Strickland, supra. Under this test, counsel is presumed effective, and the defendant has the burden to show both that counsel’s performance fell below objective standards of reasonableness, and that it is reasonably probable that the results of the proceeding would have been different had it not been for counsel’s error. Strickland, supra at 687, 690, 694. But in Cronic, supra at 659-662, the United States Supreme Court identified three rare situations in which the attorney’s performance is so deficient that prejudice is presumed. One of these situations involves the complete denial of counsel, such as where the accused is denied counsel at a “critical stage” of the proceedings.
This case falls within the ambit of Strickland because none of the three Cronic situations is present. In their
The Cronic test applies when the attorney’s failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding. Bell, supra at 697. Because counsel consulted with defendant, gave
Our determination that Strickland rather than Cronic applies is supported by Roe v Flores-Ortega,
The applicability of Strickland is even more apparent in the instant case than in Roe, supra. In this case, defendant’s attorney consulted with defendant and discussed the risks of talking to the police. As in Roe, the decision to talk to the police and, thus, to waive the right against compelled self-incrimination and the right to counsel’s presence during interrogation, belonged to
We next consider the Court of Apрeals ruling that the exclusionary rule applies to the “fruit” of defendant’s confession — the testimony of the street sweepers.
The suppression of evidence should be used only as a last resort. Hudson v Michigan, _ US _;
“Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” Calandra, supra at 348.
“Thе exclusionary rule has its limitations ... as a tool of judicial control.... [In] some contexts the rule is ineffective as a deterrent.... Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations.... [A] rigid and unthinking application of the ... rule ... may exact a high toll in human injury and frustration of efforts to prevent crime.”*249 Terry v Ohio [392 US 1 , 13-15;88 S Ct 1868 ;20 L Ed 2d 889 (1968)]. [People v Stevens (After Remand),460 Mich 626 , 636;597 NW2d 53 (1999).]
“[Application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,” Calandra, supra at 348, “that is, ‘where its deterrence benefits outweigh its “substantial social costs,” ’ ” Hudson, supra at 2163, quoting Pennsylvania Bd of Probation & Parole v Scott,
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force. [Tucker, supra at 447.]
This Court has previously opined that application of the exclusionary rule is inappropriate in the absence of governmental misconduct. See, e.g., Goldston, supra at 538 (“[T]he goal of the exclusionary rule would not be furthered where police officers act in objectively reasonable good-faith reliance on a search warrant.”); People v Elston,
We agree with Judge TALBOT that Tucker supports this conclusion. In Tucker, the defendant was interrogated before the United States Supreme Court had decided Miranda, supra, but the Miranda decision nonetheless applied because it had been decided before the defendant’s trial. During the interrogation, the police did not inform the defendant, as they were required to do after Miranda, that counsel would be appointed if the defendant could not afford one. Tucker, supra at 436. During questioning, the defendant named an alibi witness. Id. The witness, rather than confirming the defendant’s alibi, discredited his story. Id. at 436-437.
The Tucker Court held that the exclusionary rule did not apply to the witness’s testimony. Id. at 452. The Court explained that the police conduct was a departure from later-enacted “prophylactic standards” rather than actual misconduct, so the exclusion of the illegally obtained derivative evidence would not deter future misconduct. Id. at 446.
The instant case offers even stronger grounds than Tucker against excluding the testimony of the witnesses. Both Tucker and defendant gave statements without counsel present and identified witnesses in their statements. But while Tucker was advised of only some of his rights before waiving his right to counsel, defendant was advised of all of his Miranda rights before waiving his right to counsel. Tucker did not have counsel present when he waived his right to counsel, while defendant did. There was no police misconduct in either case. In both cases, the confession was suppressed, but in Tucker, the witness identified during the confessions was permitted to testify. The same outcome should pertain here. Here, as in Tucker, no deterrent purpose would be served by barring the witnesses’ testimony. Moreover, the propriety of this outcome is reinforced here, as in Tucker, because witnesses were not subjected to custodial pressures, and would be subject to cross-examination.
Our holding is also supported by People v Kusowski,
Further, even if defendant’s confession had been obtained as a result of police misconduct, we hold that the exclusionary rule would not apply to the street
In Ceccolini, supra at 276-278, the United States Supreme Court held that the connection between police misconduct and the discovery of witnesses who will testify at trial is often too attenuated to justify application of the exclusionary rule:
The greater the ■willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.
. . . Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor*254 McCormick, “serious obstructions to the ascertainment of truth”; accordingly, “[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions.” C. McCormick, Law of Evidence § 71 (1954). [Ceccolini, supra at 276-278.]
The Ceccolini Court concluded that “since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.” Id. at 278.
[T]he exclusionary rule should be invoked with much greater reluctance where the claim is based on a caused relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. [Id. at 280.]
Applying these principles, we conclude that the dеgree of attenuation was sufficient to dissipate the connection between any Sixth Amendment violation and the testimony. Ceccolini, supra at 279. The street sweepers testified of their own free will during the first trial, and any violation of defendant’s right to counsel during the interrogation played no meaningful part in the street sweepers’ willingness to testify. Moreover, we have no indication that their testimony was, or would be in the next trial, coerced.
In sum, the Court of Appeals erred in holding that the exclusionary rule applies to the street sweepers’ testimony. Law enforcement did not engage in any misconduct in obtaining defendant’s confession or discovering the identity of the street sweepers, so the goal of the exсlusionary rule would not be served by exclud
V CONCLUSION
We reverse the Court of Appeals holding that the exclusionary rule applies to the street sweepers’ testimony. We further vacate the Court of Appeals endorsement of the federal district court’s Cronic analysis. We remand for further proceedings consistent with this opinion.
Notes
We do not disturb the Court of Appeals holding that defendant’s statements are admissible for impeachment purposes, which is not at issue in this appeal.
Miranda v Arizona,
3 People v Ginther,
Because the prosecution appealed the trial court’s decision, the trial court never held a hearing regarding whether the police would have inevitably discovered the street sweepers’ identities.
In his partial dissent, Judge Talbot stated that whether defendant’s Sixth Amendment rights were violated was not an issue before the Court. Judge Talbot stated that he was not sure of the correctness of the federal district court’s decision that defendant was denied his right to counsel, but that the Court of Appeals was bound by the unchallenged federal court determination.
Judge Talbot joined the majority on this point.
But the panel disagreed with the trial court that the prosecution was required to show that it actually discovered the street sweepers’ identities through independent legal means.
Although the federal district court’s habeas decision is binding on the parties in this particular case, it is not binding precedent for other cases. See Abela v Gen Motors Corp,
The dissent would have us leave unquestioned the federal district court’s analysis. But the Court of Appeals opinion approving the district court’s analysis is published and is binding precedent for the Court of Appeals and lower courts. MCR 7.215(J)(1). Even if the Court of Appeals approval of the district court’s opinion is dicta, we will not allow that dicta to stand when it appears in a precedentially binding opinion and is erroneous. We decline to follow the dissent’s suggestion to vacate the Court of Appeals dicta without any explanation оf why we are doing so. Rather, the parties and the bench and bar benefit when we explain the reasoning underlying our rulings. Further, although the district court’s decision is binding on the admissibility of defendant’s confession, the district court did not decide whether the street sweepers’ testimony is admissible. If defendant is convicted on retrial, this issue will likely be raised on appeal in the Michigan courts and on habeas review in federal
We also reject the dissent’s suggestion that we have not genuinely attempted to execute the federal order. We have complied with that order, contrary to the prosecution’s request that we violate the order by admitting defendant’s confession. See n 16 of this opinion.
The other two situations in which prejudice is presumed are as follows: (1) “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and (2) where counsel is called upon to render assistance under circumstances where competent counsel very likely could not. Cronic, supra at 659-660.
In this postarraignment interrogation case, defendant had a Sixth Amendment right to counsel at the police interrogation, a critical stage of the proceedings. Michigan v Jackson,
Additionally, counsel, relying on previous experience, believed that the prosecution might change its position and make a plea offer after defendant talked to the police.
Although we hold that the federal district court should have applied the Strickland standard, we do not apply the Strickland test to the facts of this case or offer any opinion regarding the effectiveness of counsel.
We reject defendant’s argument that his waiver of counsel was not knowing and intelligent because it was made on the advice of defense counsel. The 1998 Court of Appeals panel decided that defendant’s waiver of counsel was valid. The federal district court’s failure to analyze whether defendant’s waiver of counsel was valid further illustrates its faulty reasoning in concluding that Cronic rather than Strickland applies.
This Court denied leave to appeal that decision.
We reject the dissent’s argument that we have foreclosed any possibility of holding that the derivative evidence (the street sweepers’ testimony) should be excluded by “flatly refus[ing] to accept the validity of the district court’s order.” Post at 261. As we have clearly stated, we recognize that the district court’s ruling is binding, and we accept for purposes of this case that defendant’s Sixth Amendment rights were violated and that his confession must be excluded. We have scrupulously honored the district court’s order, which provides, in pertinent part:
[T]he only appropriate remedy is to not allow use of [defendant’s] tainted statements, should the State decide to initiate a new trial in this matter.
The Court ORDERS that the warden release Petitioner from custody, unless the State of Michigan initiates a new trial in this*247 case, consistent with this Court’s Opinion, within one hundred and twenty (120) days from the entry of this Order. [Frazier v Berghuis, supra, slip op at *7-8.]
The district court did not rule on the admissibility of the street sweepers’ testimony. In compliance with the district court’s order, we are remanding for a new trial in which defendant’s confession must be excluded from evidence. Our disagreemеnt with the district court’s ruling regarding the admissibility of defendant’s statements in no way affects our ruling regarding the admissibility of the street sweepers’ testimony.
“[X]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Segura v United States,
While courts must be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for applying the exclusionary rule. Stone v Powell,
In Stone, supra at 488 n 24, the United States Supreme Court quoted Professor Anthony Amsterdam:
“The rule is unsupportable as reparation or compensatory dispensation to the injured criminal; its sole rational justification is the experience of its indispensability in ‘exertfing] general legal pressures to secure obedience to the Fourth Amendment on the part of... law-enforcing officers.’ As it serves this function, the rule is a needed, but grud[g]ingly taken, medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest....” Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 388-389 (1964) (footnotes omitted).
The dissent cites United States v Wade,
We reject the dissent’s contention that Tucker is inapplicable because the Tucker defendant’s Sixth Amendment rights were not violated. The dissent ignores that the Tucker Court based its holding that the exclusionary rule did not apply to the derivative evidence on the narrow ground that the deterrence rationale of the exclusionary rule would not he fulfilled by excluding the evidence, because the police did not еngage in misconduct. Tucker, supra at 447-448. We base our holding on the same ground.
The dissent argues that the street sweepers’ failure to approach the police within one week of the crimes shows that they were not aware of the murders or did not connect the murders with defendant. But this fact actually supports our conclusion that the street sweepers testified of their own free will. In Ceccolini, supra at 279, the Court held that the substantial time that elapsed between the illegal search, the police contact with the witness, and the testimony at trial demonstrated that the witness testified of her own free will. We fail to see how the street sweepers’ initial ignorance of the murders demonstrates their unwillingness to testify.
The dissent argues,
In contrast to the situation in Ceccolini, the identities of the street sweepers were not known to investigators, nor were they likely to he uncovered in the course of the police investigation.. .. [I]t appears that the relationship between discovering the identities of the street sweepers and defendant’s illegal interrogation is not attenuated because the identities were revealed as a direct result of defendant’s interrogation. [Post at 267.]
But Ceccolini, supra at 277, holds: “ ‘The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’ ” (Citation omitted.) The attenuation exception to the exclusionary rule, unlike the inevitable discovery exception, does not focus primarily on the likelihood of discovering a five witness. Rather, Ceccolini holds that the attenuation exception applies when the connection between police misconduct and the discovery of witnesses who will testify at trial is too attenuated to justify application of the exclusionary rule. Attenuation can occur when the causal connection is remote or when “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson, supra at 2164. Here, the attenuation exception applies because the illegality played no meaningful role in the street sweepers’ decision to testify, and the costs of excluding the street sweepers’ testimony would outweigh the interests served by its suppression.
The dissent argues that it is questionable whether the identities of the street sweepers would inevitably have been discovered during the course of the police investigation. We agree. But the inevitable discovery doctrine is an exception to application of the exclusionary rule. Stevens, supra at 636. Because the exclusionary rule does not apply to the street sweepers’ testimony, the inevitable discovery exception is also inapplicable.
Dissenting Opinion
(dissenting). I respectfully dissent from today’s decision. In this case, we are called to implement a federal district court’s order stemming from defendant’s petition for a writ of habeas corpus. Rather than genuinely attempting to execute the federal court’s order in our courts, the majority disputes the basis of the order itself and, as a result, frustrates its intended effect.
From the outset, the majority needlessly criticizes the federal district court’s legal analysis. We are bound by the district court’s holding that defendant’s incarceration violated the United States Constitution be
Aside from the constraints of res judicata, the federal district court’s enforcement power prevents us from deviating from its conditional grant of defendant’s petition for a writ of habeas corpus. When conditionally granting a writ of habeas corpus, a federal district court retains jurisdiction to determine whether a party has complied with the terms of its order. Gentry v Deuth,
Because we are bound to follow the federal district court’s order, any statements adopting or disavowing the basis of the order are inconsequential; they cannot influence any decision before us.
I. THE EXCLUSIONARY RULE IN SIXTH AMENDMENT CASES
We are presented with the question whether, when a confession has been obtained in violation of a defendant’s Sixth Amendment rights but without police misconduct, the exclusionary rule applies to live-witness testimony that is derived from the tainted confession. The exclusionary rule has long been employed as a remedy for violations of the Sixth Amend
[W]hen before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted. [Id. at 365.]
The nature of a Sixth Amendment violation supports the use of the exclusionary rule even when the violation occurs because of defense counsel’s ineffectiveness or absence rather than government misconduct. “[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland v Washington,
The rule distilled from federal authority is that the remedy for Sixth Amendment violations should be tailored to the circumstances to assure the defendant a fair trial. Morrison, supra at 364. In fashioning an appropriate remedy, the federal approаch has been “to identify and then neutralize the taint by tailoring relief
The majority contends that an application of the exclusionary rule is inappropriate in the absence of governmental misconduct. Ante at 250. But as I noted in People v Goldston,
II. DERIVATIVE EVIDENCE
Given that defendant’s statement must be excluded from evidence, this Court is presented with the question whether evidence derived from defendant’s interrogations, namely, the testimony of two street sweepers whom defendant identified during his conversations with the police, should also be excluded. In deciding whether derivative evidence is admissible, the relevant inquiry is “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun, supra at 488, quoting Maguire, Evidence of Guilt, p 221 (1959). Derivative evidence may be admissible if the connection between the illegality and the evidence was “ ‘so attenuated as to dissipate the taint.’ ” Wong Sun, supra at 491, quoting Nardone v United States,
Under the attenuation test of Wong Sun, the testimony of Wright and Mack should be excluded from evidence. Their identities were discovered as a direct result of the tainted interrogation. There was no intervening act of free will that dissipated the taint of the Sixth Amendment violation. The majority argues that Michigan v Tucker,
[Defendant] did not, and does not now, base his arguments for relief on a right to counsel under the Sixth and Fourteenth Amendments. Nor was the right to counsel, as such, considered to be persuasive by either federal court below. We do not have a situation such as that presented in Escobedo v. Illinois,378 U.S. 478 [84 S Ct 1758 ;12 L Ed 2d 977 (1964)], where the policemen interrogating the suspect had refused his repeated requests to see his lawyer who was then present at the police station. [Tucker, supra at 438.]
But we have already concluded that the police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege. [Id. at 445-446.]
In sum, Tucker made very clear that its holding was based on the condition that there was no constitutional violation, but merely a violation of what it perceived as a procedural safeguard designed to protect the constitutional right against sеlf-incrimination. Because the present case involves a constitutional violation, defendant’s case is more analogous to Wong Sun than to Tucker.
But analysis under the rule of Wong Sun does not resolve the inquiry because in this case the derivative evidence is live-witness testimony, which requires special consideration. “[T]he exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.” United States v Ceccolini,
The first factor in live-witness cases considers the free will of a live witness. In part, it is related to the inevitable discovery doctrine, an exception to the exclusionary rule that allows the admission of illegally obtained evidence if the evidence would inevitably have been obtained through legal means.
The remaining live-witness factors balance the costs of excluding a live witness with the illegality. Live-witness testimony requires a closer connection to the illegality because “such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby.” Ceccolini, supra at 277. But this factor is most relevant when the discovery of the live witness is incidental to the illegality. For example, in Ceccolini, a police officer discovered in an envelope evidence of a gambling operation while casually visiting with a store clerk. When the officer asked the clerk whom the envelope belonged to, the clerk identified Ceccolini, the defendant. At Ceccolini’s trial, both the contents of the envelope and the clerk’s testimony were suppressed on the basis that an illegal
In contrast to the situation in Ceccolini, the identities of the street sweepers were not known to investigators, nor were they likely to be uncovered in the course of the police investigation. Wright and Mack were strangers to defendant, so the police would have had no reason to interview them as his associates. While it is possible that the prosecution may be able to demonstrate to the contrary, it appears that the relationship between discovering the identities of the street sweepers and defendant’s illegal interrogation is not attenuated because the identities were revealed as a direct result of defendant’s interrogation.
The Court of Appeals was correct to remand this case to the trial court to consider the Ceccolini factors and determine whether the testimony of Wright and Mack would otherwise be admissible under the inevitable discovery doctrine. Because of the trial court’s initial ruling, the question whether the identities of the street sweepers would have been inevitably discovered was never addressed. Consequently, the prosecution should be given the opportunity to show that Wright and Mack would have been discovered regardless of defendant’s interrogation without counsel. Accordingly, I would affirm the decision of the Court of Appeals.
The majority suggests that these issues may be raised on appeal if defendant is convicted. But the federal district court order will always bind this particular case because the prosecution failed to appeal the ruling.
The majority characterizes its discussion of Strickland v Washington,
I do not dispute that there was no evidence of police misconduct in this case. But as I have stated here and on other occasions, I disagree that the exclusionary rule is an appropriate remedy only when government misconduct has occurred.
While the underlying Sixth Amendment violation is not a question that is properly before us, because of the majority’s extensive review of the matter, I find it appropriate to briefly rebut its account. Ample evidence supports the federal district court’s ruling. The defect in defense counsel’s performance was not merely advising his client to speak to the police despite being told that no plea agreements were being offered; counsel’s advice also prompted defendant to waive his right to have counsel present at the interrogation. Notably, at the hearing conducted pursuant to People v Ginther,
Miranda v Arizona,
While Ceccolini does not hold that the discovery of a live witness may only be attenuated if that witness would have been inevitably discovered, the likelihood of disсovering a live witness remains a significant factor. Ceccolini itself evokes the inevitable discovery doctrine when it notes that “[t]he greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means,” Ceccolini, supra at 276 (emphasis added), and that “a determination that the discovery of certain evidence is sufficiently... independent of the constitutional violation to permit its introduction at trial is not a determination which rests on the comparative reliability of that evidence,” id. at 278 (emphasis added). In applying the live-witness factors to Ceccolini’s case, the Court observed that “both the identity of [the witness] and her relationship with the respondent were well known to those investigating the case,” id. at 279, suggesting that the witness’s identity would have been discovered regardless of the illegality. Further, Justice Marshall recognized in his dissent that the Ceccolini factors bore resemblance to the inevitable discovery doctrine when he stated:
[T]he Court’s approach involves a form of judicial “double counting.” The Court would apparently first determine whether the evidence stemmed from an independent source or would inevitably have been discovered; if neither of these rules was found to apply, as here, the Court would still somehow take into account*266 the fact that, as a general proposition Glut not in the particular case), witnesses sometimes do come forward of their own volition. [Id. at 287-288 (Marshall, J., dissenting).]