PEOPLE v TANNER
Docket No. 146211
Supreme Court of Michigan
Argued November 6, 2013 (Calendar No. 7). Decided June 23, 2014.
496 Mich 199
George R. Tanner was charged with open murder,
In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices KELLY, ZAHRA, and VIVIANO, the Supreme Court held:
Once it is determined that a suspect‘s decision not to rely on his or her rights was uncoerced, that at all times the suspect knew he or she could stand mute and request a lawyer, and that the suspect was aware of the state‘s intent to use the suspect‘s statements to secure a conviction, the analysis is complete and a waiver of those rights is valid as a matter of law, overruling People v Bender, 452 Mich 594 (1996).
- Under the Fifth Amendment of the United States Constitution and
Article 1, § 17 of Michigan‘s 1963 Constitution , no person shall be compelled in any criminal case to be a witness against him or herself. In Miranda, the United States Supreme Court held that the accused must be given a series of warnings before being subjected to custodial interrogation in order to protect the constitutional right against self-incrimination. A suspect‘s waiver of the Miranda rights must be made voluntarily, intelligently, and knowingly. - In Moran v Burbine, 475 US 412 (1986), the United States Supreme Court held that the failure of the police to inform a suspect of the efforts of an attorney to reach the suspect does not deprive the suspect of his or her right to counsel or otherwise invalidate a Miranda waiver. Michigan‘s Supreme Court reached a different conclusion in Bender, holding that for a suspect‘s Miranda waiver to be made knowingly and intelligently, the police must promptly inform the suspect that an attorney is available when that attorney has made contact with them.
Article 1, § 17 of Michigan‘s 1963 Constitution concerns compelled statements. At the time of the Constitution‘s ratification, the word “compelled” was commonly understood to refer to the use of coercion, violence, force, or pressure. Accordingly,Article 1, § 17 can be reasonably understood to protect a suspect from the use of his or her involuntary incriminating statements. The language ofArticle 1, § 17 does not support the decision reached in Bender, which pertained not to whether a statement was made voluntarily, but whether it was made knowingly. The lead and majority opinions in Bender engaged in an unfounded creation of constitutional rights. - Prior Michigan caselaw did not foreshadow or otherwise provide support for Bender‘s per se exclusionary rule. Before Bender, the Michigan Supreme Court examined the effect of an attorney‘s attempts to contact a suspect on the admissibility of the suspect‘s confession in People v Cavanaugh, 246 Mich 680 (1929), and People v Wright, 441 Mich 140 (1992). Neither decision supported Bender‘s assertion that Michigan courts have historically interpreted Michigan‘s Self-Incrimination Clause to provide criminal suspects with greater protections than those afforded by the Fifth Amendment. Rather, under Michigan law before Miranda, voluntariness constituted the sole criterion for a confes-sion to be admissible under either the Due Process Clause or Michigan‘s Self-Incrimination Clause.
- Although Michigan‘s Supreme Court need not interpret a provision of the Michigan Constitution in the same manner as a similar or identical federal constitutional provision, the United States Supreme Court‘s interpretation of the Self-Incrimination Clause of the Fifth Amendment in Moran constitutes the proper interpretation of
Article 1, § 17 as well. Full comprehension of Miranda rights is sufficient to dispel whatever coercion is inherent in the interrogation process, and the waiver of those rights cannot be affected by events that are unknown and unperceived, such as the fact that an attorney is available to offer assistance. - The application of stare decisis is generally the preferred course, but the Court is not constrained to follow precedent when governing decisions are “unworkable or badly reasoned.” Overruling Bender would not produce practical real-world dislocations, and less injury would result from overruling it than from maintaining it.
- In this case, defendant was read his Miranda rights and invoked his right to counsel, but then reinitiated contact with the police when he indicated that he wanted to “get something off of his chest.” He was again afforded his Miranda rights, and waived them, choosing not to reassert his right to counsel. Defendant‘s lack of awareness of the appointed attorney‘s presence at the jail did not invalidate his Miranda waiver. Therefore, the trial court erred by suppressing defendant‘s incriminating statements.
Reversed and remanded.
Justice CAVANAGH, dissenting, believed that Bender correctly determined that
Justice MCCORMACK, dissenting, agreed with Justice CAVANAGH that the Bender rule was grounded in
CRIMINAL LAW - CONSTITUTIONAL LAW - SELF-INCRIMINATION CLAUSE - WAIVER OF RIGHTS - AVAILABILITY OF AN ATTORNEY.
No person shall be compelled in any criminal case to be a witness against him or herself; the accused must be given a series of warnings before being subjected to custodial interrogation in order to protect the constitutional right against self-incrimination; once it is determined that the accused‘s decision not to rely on his or her rights was uncoerced, that at all times the accused knew he or she could stand mute and request a lawyer, and that the accused was aware of the state‘s intent to use his or her statements to secure a conviction, the analysis is complete and a waiver of those rights is valid as a matter of law; the waiver of those rights is not affected by events that are unknown and unperceived, such as the fact that an attorney is available to offer assistance (
Mark A. Gatesman for defendant.
Amici Curiae:
Kym L. Worthy and Timothy A. Baughman for the Prosecuting Attorneys Association of Michigan.
Eve Brensike Primus, Daniel S. Korobkin, and Michael J. Steinberg for the Criminal Defense Attorneys of Michigan and the American Civil Liberties Union Fund of Michigan.
OPINION OF THE COURT
MARKMAN, J. This Court granted leave to appeal to consider whether the rule announced in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), should be maintained. Bender requires police officers to promptly inform a suspect facing custodial interrogation that an attorney is available when that attorney attempts to contact the suspect. If the officers fail to do so, any statements made by the suspect, including voluntary statements given by the suspect with full knowledge of his Miranda rights,1 are rendered inadmissible. Because there is nothing in this state‘s Constitution to support that rule, we respectfully conclude that Bender was wrongly decided and that it must be overruled. We therefore reverse the trial court‘s suppression of certain
incriminating statements made by defendant, which suppression was justified solely on the grounds of Bender, and remand to the trial court for further proceedings consistent with this opinion.
I. FACTS
Defendant George Tanner was arrested for murder and taken to jail on October 17, 2011. He was read his Miranda rights, and when police officers attempted to interview defendant at the jail, he invoked his right to counsel. As a result, the officers informed defendant that he would have to reinitiate contact if he subsequently changed his mind and wished to speak to them. The next day, while a psychologist employed by the jail to interview inmates was speaking with defendant, he said that he wanted to “get something off his chest.” The psychologist told defendant that he should not further discuss the case with her, that he might wish to speak to an attorney, and that she could make arrangements for him to speak to the police officers. Defendant again stated that he wanted to “get things off his chest,” so the psychologist told defendant that she would inform jail staff of his request. She then contacted the jail administrator and informed him that defendant wished to speak to police officers about his case.
The administrator spoke with defendant, told him that the psychologist had indicated that he wanted to “get something off his chest,” and inquired whether he still
One of the police officers testified that he was contacted by the administrator and apprised that defendant might now be amenable to speaking with the officers. The police officer further testified that he confirmed with the administrator that defendant had not requested that an attorney be present during the interview, and that the administrator believed an attorney had been appointed merely as a contingency in the event defendant sought an attorney during the interview. Subsequently, both the police officers and an attorney appeared at the jail. Apparently unsure of his role, the attorney asked the officers and the administrator if they knew why he was there. The administrator responded and told him to wait in the jail lobby while he took the officers back to speak with defendant and determine his intentions.
Defendant was again read his Miranda rights, which he waived this time without requesting an attorney and without being made aware of the attorney‘s presence. The administrator then instructed the attorney that he could leave. Defendant shortly thereafter made incriminating statements concerning his involvement in the murder. He was eventually charged with open murder,
The prosecutor filed an application for leave to appeal in the Court of Appeals, which was denied for lack of merit, and he then filed an application for leave to appeal in this Court, requesting that Bender be reconsidered. We granted this application, People v Tanner, 493 Mich 958 (2013), and heard oral argument on this case on November 6, 2013.
II. STANDARD OF REVIEW
This court “review[s] a trial court‘s factual findings in a ruling on a motion to suppress for clear error. To the extent that a trial court‘s ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo.” People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001).
III. BACKGROUND
The Fifth Amendment of the United States Constitution provides that
Miranda warnings before custodial interrogation, “no evidence obtained as a result of interrogation can be used against him.” Id. at 479 (citations omitted).
Once a suspect invokes his right to remain silent or requests counsel, police questioning must cease unless the suspect affirmatively reinitiates contact.4 Id. at 473-474. In Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981) (citations omitted), the United States Supreme Court created “additional safeguards” for when the accused invokes his right to have counsel present during custodial interrogation:
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [H]aving expressed his desire to deal with the police only through counsel, [an accused] is not subject to further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
However, when a suspect has been afforded Miranda warnings and affirmatively waives his Miranda rights, subsequent incriminating statements may be used against him. Miranda, 384 US at 444, 479. A suspect‘s waiver of his Miranda rights must be made “voluntarily, knowingly, and intelligently.” Id. at 444. The United States Supreme Court has articulated a two-part inquiry to determine whether a waiver is valid:
First, the relinquishment of the right must have been “voluntary,” in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986), citing Fare v Michael C, 442 US 707; 99 S Ct 2560; 61 L Ed 2d 197 (1979).]
Under the Fifth Amendment construct set forth by the United States Supreme Court, the defendant in the instant case was afforded his Miranda rights by the police and invoked his right to counsel on October 17, 2011. Defendant then reinitiated contact with the police the next day when he indicated that he wanted to “get something off his chest” and speak with the officers. He was then afforded his Miranda rights a second time, and on this occasion waived those rights and chose not to reassert his right to counsel. During the following custodial interrogation by the police officers, defendant made an incriminating statement concerning his involvement in a murder. The only pertinent question then is whether defendant‘s lack of awareness of the appointed attorney‘s presence at the jail at the time of his Miranda waiver following his reinitiation of contact with the police calls into question the validity of that waiver, including the waiver of his right to counsel—rendering it something other than “voluntary, knowing, and intelligent“—and thus requires suppression of any subsequent incriminating statements.
A. MORAN υ BURBINE
The United States Supreme Court has addressed this question for purposes of the federal criminal justice system in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), in which it held that the failure of police to inform a suspect of the efforts of an attorney to reach that suspect does not deprive the suspect of his right to counsel or otherwise invalidate the waiver of his Miranda rights. In Moran, the defendant confessed to the murder of a young woman after he had been informed of, and waived, his Miranda rights. While the defendant was in custody, his sister retained an attorney to represent him. The attorney then contacted the police and was assured that all questioning would cease until the next day. However, less
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. Once it is determined that a suspect‘s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State‘s intentions to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [Id. at 422-423 (citations omitted).]
Any culpability on the part of the police inherent in their failing to inform the defendant of the attorney‘s availability had no bearing on the validity of his Miranda waiver:
[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of [the defendant‘s] election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect‘s decision to waive his Miranda rights unless he were at least aware of the incident.... Granting that the “deliberate or reckless” withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because respondent‘s voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid. [Id. at 423-424 (citations omitted).]
A rule requiring a suspect to be kept apprised of an attorney‘s presence in order
Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney‘s efforts to contact him contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society‘s legitimate and substantial interest in securing admissions of guilt. [Id. at 427.]
Moran concluded that “nothing disables the States from adopting different requirements of the conduct of its employees and officials as a matter of state law.” Id. at 428.
B. PEOPLE v BENDER
This Court reached a different conclusion from that of Moran in Bender, 452 Mich 594 (1996), holding that for a suspect‘s Miranda waiver to be made “knowingly and intelligently,” police officers must promptly inform a suspect that an attorney is available when that attorney has made contact with them. In Bender, two defendants, Jamieson Bender and Scott Zeigler, were arrested for a series of thefts and taken into custody. An officer informed Bender‘s mother of his arrest. Subsequently, Bender‘s father called an attorney, who agreed to represent his son. When the attorney called the police and sought to speak with Bender, she was not permitted to do so. Defendant Ziegler‘s mother called an attorney, who instructed her go to the police station and tell her son not to speak with anyone before speaking with the attorney. Police also did not allow Ziegler‘s mother to see her son and communicate the attorney‘s message. Without informing the defendants of their attorneys’ efforts to contact them, police read the defendants their Miranda rights, defendants waived these rights, and each offered incriminating statements concerning their involvement in the thefts. At no point did the defendants request an attorney or assert their rights either to remain silent or to have counsel.
This Court adopted a per se rule that a suspect who has an attorney waiting in the wings does not make a “knowing and intelligent” waiver of his Miranda rights when the police have failed to inform him that an attorney has been made available to him and is at his disposal. Id. at 620 (opinion by CAVANAGH, J.). See also id. at 621 (opinion by BRICKLEY, C.J.). Although Justices LEVIN and MALLETT concurred with Justice CAVANAGH‘S lead opinion grounding the rule in Michigan‘s 1963 Constitution, the Court‘s holding was not ultimately grounded upon constitutional principles. Rather, Chief Justice BRICKLEY concurred with the result reached in the lead opinion, but declined to rely upon its interpretation of the Constitution, instead declaring that the requirement that an accused must be informed of an attorney‘s efforts to contact him constituted, as did Miranda itself at the time, a “prophylactic,” or precautionary, rule. Id. at 620-621 (opinion by BRICKLEY, C.J.).5 Justices CAVANAGH, LEVIN, and MALLETT also joined Chief Justice BRICKLEY‘S concurrence, making it the operative
Although it did not provide the operative holding, the lead opinion grounded its reasoning upon independent state constitutional grounds, concluding, “we hold that, on the basis of
violation, to prevent an attorney from contacting his client before or during interrogation.” Id. at 615. To further sustain its conclusion, the lead opinion also noted that this Court has held that “the Michigan Constitution imposes a stricter requirement for a valid waiver of the rights to remain silent and to counsel than those imposed by the federal constitution.” Id. at 611, citing People v Wright, 441 Mich 140, 147; 490 NW2d 351 (1992). The lead opinion declined to adopt a “totality-of-the-circumstances test,” because the “inherently coercive nature of incommunicado interrogation requires a per se rule that can be implemented with ease and practicality to protect a suspect‘s rights to remain silent and to counsel.” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.).
In Chief Justice BRICKLEY‘S “majority opinion,”8 he stated that
[t]his case rather clearly implicated both the right to counsel (
Const 1963, art 1, § 20 ) and the right against self-incrimination (Const 1963, art 1, § 17 ). I conclude that rather than interpreting these provisions, it would be more appropriate to approach the law enforcement practices that are at the core of this case in the same manner as the United States Supreme Court approached the constitutional interpretation task in Miranda v Arizona; namely, by announcing a prophylactic rule.The right to counsel and the right to be free of compulsory self-incrimination are part of the bedrock of constitutional civil liberties that have been zealously protected and in some cases expanded over the years. Given the focus and protection that these particular constitutional provisions have received, it is difficult to accept and constitutionally justify a rule of law that accepts that law enforcement
investigators, as part of a custodial interrogation, can conceal from suspects that counsel has been made available to them and is at their disposal. If it is deemed to be important that the accused be informed that he is entitled to counsel, it is certainly important that he be informed that he has counsel. [Id. at 620-621 (opinion by BRICKLEY, C.J.) (citations omitted).]
Thus, the majority opinion, although referring to Michigan‘s Constitution for its “implications,” declined nonetheless to interpret
Justice BOYLE, joined by Justices RILEY and WEAVER, dissented:
[W]ithout a single foundation in the language, historical context, or the jurisprudence of this Court, a majority of the Court engrafts its own “enlightened” view of the
Constitution of 1963, art 1, § 17 , on the citizens of the State of Michigan. With nothing more substantial than a disagreement with the United States Supreme Court as the basis for its conclusion, a majority of the Court ignores our obligation to find a principled basis for the creation of new rights and imposes a benefit on suspects that will eliminate voluntary and knowledgeable confessions from the arsenal of society‘s weapons against crime. [Id. at 624 (BOYLE, J., dissenting).]
According to the dissent in Bender, the guarantee against compelled self-incrimination found in
[i]n its haste to create a novel ”Miranda-like right[],” a majority of the Court blurs the distinction between the constitutional right to be free from compelled self-incrimination and the safeguards—Miranda warnings—created to protect that right. In effect, a majority of the Court creates prophylactic rules to protect prophylactic rights. The argument seems to be that it is necessary to inform a suspect that an attorney is attempting to contact him, which, in turn, effectuates the suspect‘s right to counsel, which, in turn, effectuates a suspect‘s right to remain silent, which, in turn, effectuates a suspect‘s right to be free from compelled self-incrimination. Safeguards for safeguards is absurd and is not required by the Michigan Constitution, the federal constitution, or Miranda.
...
Given... that neither the Michigan nor the federal constitution require extension of the Miranda litany, the majority‘s only possible justification for requiring the police to inform a suspect that an attorney wishes to speak with him must be grounded on policy concerns, not constitutional mandates. But policy concerns also fail under proper analysis. [Id. at 644.]
In sum, while Bender concluded that the failure of police officers to inform a suspect of an attorney‘s attempts to communicate with the suspect invalidates his Miranda waiver, there was no agreement as to whether Michigan‘s Constitution required that rule.
IV. ANALYSIS
The question presently before this Court is whether the rule of Bender should be maintained.9 The first and most consequential
2014] PEOPLE V TANNER 219
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A. THE BENDER RULE
The Bender majority cited no Michigan law to justify its creation of a state constitutional rule different from the United States Supreme Court’s federal constitutional rule in Moran, ironically citing only several United States Supreme Court decisions at variance with Moran. Nonetheless, Moran rightly acknowledged, as it must, that its decision did not “disable[] the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Moran, 475 US at 428.10 However, the Bender majority neither analyzed nor compared and contrasted to its federal counterpart the text of
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Indeed, two years after Bender, in People v Sexton, 458 Mich 43, 70-72; 580 NW2d 404 (1998), then Justice
[w]hile the Bender rule is prophylactic in nature like Miranda, that fact does not detract from its constitutional underpinnings. Its very purpose is to protect a suspect’s right to counsel and the privilege against self-incrimination. To deny the constitutional import of this rule is to ignore the plain language set forth in Bender. [Citation omitted.]
Thus, the majority purported to articulate a state constitutional rule in Bender, prophylactic or otherwise, distinct from the federal constitutional rule in Moran,12 while apparently disclaiming all reliance on state constitutional provisions.
B. THE MICHIGAN CONSTITUTION
To determine whether Michigan’s Constitution supports Bender, we must construe our Constitution. It is “a fundamental principle of constitutional construction that we determine the intent of the framers of the Constitution and of the people adopting it,” Holland v Heavlin, 299 Mich 465, 470; 300 NW 777 (1941), and we do this principally by examining its language. Bond v Ann Arbor Sch Dist, 383 Mich 693, 699-700; 178 NW2d 484 (1970). And we must do this even in the face of existing decisions of this Court pertaining to the same subject because there is no other judicial body, state or federal, that possesses the authority to correct misinterpretations of the Michigan Constitution.
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“In interpreting our Constitution, we are not bound by the United States Supreme Court’s interpretation of the United States Constitution, even where the language is identical.” People v Goldston, 470 Mich 523, 534; 682 NW2d 479 (2004) (citation omitted). Rather, “[this Court] must determine what law ‘the people have made.’ ” Id. (citation omitted). “[W]e may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection” under the federal Constitution. Sitz, 443 Mich at 759. As explained in Sitz:
[T]he courts of this state should reject unprincipled creation of state constitutional rights that exceed their federal counterparts. On the other hand, our courts are not obligated to accept what we deem to be a major contraction of citizen protections under our constitution simply because the United States Supreme Court has chosen to do so. We are obligated to interpret our own organic instrument of government. [Id. at 763.]
While members of this Court take an oath to uphold the United States Constitution, we also take an oath to uphold the Michigan Constitution,13 which is the enduring expression of the will of “we, the people”
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text and history of
“The primary objective in interpreting a constitutional provision is to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). “The first rule a court should follow in ascertaining the meaning of words in a constitution is to give effect to the plain meaning of such
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words as understood by the people who adopted it.” Bond, 383 Mich at 699. “In applying this principle of construction, the people are understood to have accepted the words employed in a constitutional provision in the sense most obvious to the common understanding and to have ‘ratified the instrument in the belief that that was the sense designed to be conveyed.’ ” People v Nutt, 469 Mich 565, 573-574; 677 NW2d 1 (2004) (citation omitted).
The text of
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evidential fact“; “to urge irresistibly by moral or social pressure“; “to domineer over so as to force compliance or submission“; or “to obtain by force, violence, or coercion.” Webster’s Third New International Dictionary (1961). Thus, at the time of the ratification of
The remainder of the terms contained in
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2. CONSTITUTIONAL CONVENTION
When interpreting a constitutional provision, “[r]egard must also be given to the circumstances leading to the adoption of the provision and the purpose sought to be accomplished.” People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (citation omitted). In determining the meaning of particular constitutional provisions to the ratifiers of the Constitution, this Court has noted that “constitutional convention debates and the address to the people, though not controlling, are relevant.” Id. (citation omitted).20 The primary focus should be on “any statements [the delegates] may have made that would have shed light on why they chose to employ the particular terms they used in drafting the provision to aid in discerning what the common understanding of those terms would have been when the provision was ratified by the people.” Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 642, 656-657; 698 NW2d 350 (2005) (citation omitted).21
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However, the
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3. CONSTITUTIONAL CASELAW
Although the text of
Before Bender, this Court had previously addressed the effect of an attorney’s attempts to contact a suspect on the admissibility of the suspect’s confession in People v Cavanaugh, 246 Mich 680; 225 NW 501 (1929), and People v Wright, 441 Mich 140; 490 NW2d 351 (1992), the latter cited in Bender and both cited by defendant in this case. However, neither opinion provides the foundation for Bender’s proposition that Michigan courts have historically interpreted Michigan’s compulsory self-incrimination provision to provide criminal suspects with greater protections than those afforded by the Fifth Amendment.
In Cavanaugh, the juvenile defendant was sentenced to prison for life for committing a rape in light of evidence that the victim identified his voice and given his alleged confession of guilt. The defendant testified at trial that the police had questioned him at night, that he had not been permitted to sleep, and that he asked for and was denied an attorney. An attorney who had been retained by the defendant’s father came to the police station, but was refused access to the defendant until the attorney proceeded to the courthouse to obtain a writ of habeas corpus. It is unclear if the defendant was aware of the attorney’s presence, but in any event, he admitted to committing the crime. At trial, the defendant repudiated this confession, claiming it had been extorted by duress, brow-beating, intimidation, and by holding him incommunicado. The lower court sustained the prosecutor’s objection to the defendant’s proposed testimony regarding the circumstances surrounding his confession and did not permit the defendant to introduce evidence pertaining to his claim that police officers had held him incommunicado.
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On appeal, this Court reversed the defendant’s conviction and remanded for a new trial, concluding that the “[d]efendant had an undoubted right to lay before the jury his full claim of what the police said to him, and it was for the jury to say whether,
[A] confession, extorted by mental disquietude, induced by unlawfully holding an accused incommunicable, is condemned by every principle of fairness, has all the evils of the old-time letter de cachet, is forbidden by the constitutional guaranty of due process of law, and inhibited by the right of an accused to have the assistance of counsel. . . . Holding an accused incommunicable to parents and counsel is a subtle and insidious method of intimidating and cowing, tends to render a prisoner plastic to police assertiveness and demands, and is a trial of mental endurance under unlawful pressure.
* * *
The defendant was held incommunicable. He could not send for or employ counsel. His father was refused right to see him. When an attorney, presumably employed by his father, appeared at the jail and asked to see defendant, he was refused the right to do so until the attorney started for the courthouse to get a writ of habeas corpus. In this State a parent may not be denied the right to see and have conversation with a child in jail and accused of crime. Neither may police, having custody of one accused of crime, deny an attorney, employed by or in behalf of a prisoner, the right to see and advise the accused. [Id. at 686, 688 (emphasis added).]
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This Court concluded that “[w]hether defendant’s call for father, mother, attorney, and priest did not make any difference upon the question of his alleged confession being voluntary was for the jury.” Id. at 688-689. Consequently, defendant was entitled to a new trial, “at which the most searching examination of all the circumstances surrounding his alleged confession will be permitted.” Id. at 689.
Although Cavanaugh, like Bender, addressed the admissibility of a confession in a circumstance in which an attorney had been denied access to a person facing custodial interrogation, Cavanaugh is distinguishable from Bender in at least three significant ways, and cannot provide its foundation. First, whereas Bender pertained to whether the defendants’ waivers of their Miranda rights were made “knowingly,” Cavanaugh pertained only to whether the defendant’s confession was made voluntarily, as Miranda had not yet introduced into the Fifth Amendment analysis the rule that a defendant cannot be subject to custodial interrogation absent a “voluntary, knowing, and intelligent” waiver of Miranda rights.22 Because there was no dispute in Bender regarding the voluntary nature of defendants’ incriminating statements, Cavanaugh’s analysis concerning voluntariness cannot provide support for Bender. Second, Cavanaugh appropriately considered multiple factors—only one of which was the police
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officer’s refusal to allow an attorney access to the defendant—in its “totality of the circumstances” analysis to assess whether the defendant’s confession was made voluntarily, an analysis which at that time was the accepted mechanism for determining compliance with constitutional standards. However, Bender’s rule, invalidating all “unknowing” Miranda waivers, is a per se rule that pertains to just a
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never requested an attorney before waiving their Miranda rights and providing incriminating statements.24 Accordingly, the defendants perceived no rejected request that could act to create a coercive atmosphere and potentially call into question the voluntariness of their statements. Given these significant differences, Cavanaugh lends no support, we believe, to the notion that Michigan’s Constitution supports the per se rule of Bender.25
In Wright, the defendant was arrested for murder, taken to the police station at around 5:00 a.m., and informed of his Miranda rights. The defendant ultimately offered an incriminating statement to police officers after being deprived of food, water, and a place to sleep for a total of eleven hours while awaiting questioning. Before the defendant made his statement, his family retained an attorney who made at least two trips to the police station, requesting to speak with the defendant. Police officers refused the attorney’s request both times. The defendant ultimately gave a statement to the police without being informed of the attorney’s efforts to reach him. Before trial, the defendant filed a motion to suppress his statement. At the suppression hearing, the trial court denied the defendant’s motion, concluding that the defendant had never expressly asked for an attorney. The trial court relied on Moran, reasoning that “although the police conduct was repre-
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hensible, the law did not require the suppression of defendant’s statements.” Wright, 441 Mich at 145-146 (opinion by MALLETT, J.). The Court of Appeals affirmed, declining to impose more stringent standards on police conduct than the United States Supreme Court imposed in Moran. The defendant then appealed in this Court, and we granted leave to appeal to consider “whether a defendant has a right to know of his attorney’s efforts to contact him” and “whether the failure by police to provide a defendant with proper food, water, or opportunity to sleep, renders a defendant’s statements involuntary.” Id. at 146.
In an opinion by Justice MALLETT, joined by Justice LEVIN, and separate opinions by Chief Justice CAVANAGH and Justice BRICKLEY, this Court suppressed the defendant’s statements. The fragmented decision resulted in no binding precedent. In the lead opinion, Justice MALLETT concluded that the confession had to be suppressed because a suspect must be informed of an attorney’s in-person attempts to contact him, as Michigan’s Constitution provides for such a right. Id. at 154-155. This opinion stated as follows:
[U]nder our state’s laws, we conclude that [defendant] did not make a knowing, voluntary, and intelligent waiver of his rights when the police, before he made a statement, refused to inform him that retained counsel tried or was currently trying to contact him. Without this knowledge, [the defendant] could not make a truly voluntary waiver of his essential rights. Given the opportunity to speak to a specific, retained and available attorney, [defendant’s] decision may have been different.
Under
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In his separate concurrence, Chief Justice CAVANAGH agreed with Justice MALLETT’s conclusion that the defendant’s statement had to be suppressed and with Justice MALLETT’s analysis in interpreting Michigan’s constitutional privilege against self-incrimination “more broadly” than the Fifth Amendment. Chief Justice CAVANAGH wrote separately to emphasize that the “conclusion is even more clearly supported on the ground that the police conduct in this case violated defendant’s right to counsel under
2014] PEOPLE V TANNER 235
OPINION OF THE COURT
Wright cannot provide the foundation for Bender, because it produced no consensus that
236 496 MICH 199 [June
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torily concluded that the “accusatorial” nature of our criminal justice system warranted an “exten[sion of] the rights afforded under
Instead, in opining that
As Justice Stevens so eloquently stated, “[t]he recognition that ours is an accusatorial, and not an inquisitorial system nevertheless requires that the government’s actions, even in responding to this brutal crime, respect those liberties and rights that distinguish this society from most others.” Moran, [475 US] at 436 (Stevens, J., dissenting). Accordingly, under our state’s laws, we conclude that Mr. Wright did not make a knowing, voluntary, and intelligent waiver of his rights when the police, before he made a statement, refused to inform him that retained counsel tried or was currently trying to contact him. Without this knowledge, Mr. Wright could not make a truly voluntary waiver of his essential rights. Given the opportunity to speak to a specific, retained and available attorney, Mr. Wright’s decision may have been different. [Wright, 441 Mich at 153 (opinion by MALLETT, J.).]
2014] PEOPLE V TANNER 237
OPINION OF THE COURT
The lead opinion concluded that while “this Court has held that the interpretation of our constitutional privilege against self-incrimination and that of the Fifth Amendment are the same,” it was nevertheless appropriate to “extend the rights afforded by
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While this analysis indicates that there is no precedent specifically undergirding Bender,27 it is also relevant to examine this
interpreted the self-incrimination provision of
Concerning the first matter of exploration, there is no precedent that serves as a precursor to Bender by affording protections under
Concerning the second matter of exploration, while Bender implicates the “knowing” prong of a Miranda waiver, this Court’s precedents indicate that
We recognize the rule that confessions are inadmissible when secured by inflicting physical force or its equivalent by means of harsh or cruel treatment or false promises. The confession must be voluntary, but this does not mean that it must be volunteered. No one may be forced to be a witness against himself. [Louzon, 338 Mich 153-154 (emphasis added).]
Thus, this Court’s use of the Self-Incrimination Clause to analyze the admissibility of a confession focused entirely on the voluntariness of the confession, referring to the type of force or coercion that is contemplated in part by the text of
In his dissent, Justice CAVANAGH disagrees with this conclusion, and instead asserts that Cavanaugh foreshadowed Miranda’s “knowing and intelligent” requirement by holding that defendant’s confession was obtained in violation of what is now
...
However, as previously noted, Cavanaugh explicitly pertained only to the voluntariness of a confession, and the “incommunicable” nature of defendant’s interrogation was only one factor among many that persuaded this Court to remand for a determination whether defendant’s confession was voluntary.29 Although Cavanaugh in no way transformed this Court’s traditional voluntariness analysis, even assuming arguendo that Cavanaugh recognized that more subtle forms of coercion might render a confession involuntary, there is simply no indication that Cavanaugh contemplated the “knowing and intelligent” requirement set forth almost four
edges, “when interpreting the Michigan Constitution, we must recognize the law as it existed in Michigan at the time the relevant constitutional provision was adopted, and ‘it must be presumed that a constitutional provision has been framed and adopted mindful of prior and existing law and with reference to them.’ People v Kirby, 440 Mich 485, 492; 487 NW2d 404 (1992).” Post at 258-259 (emphasis added). The trajectory of our constitutional development under our equivalent of the
Moreover, this Court’s precedent provides no support for the proposition that this Court has placed extra emphasis on the “knowing” prong of a Miranda waiver in the period since Miranda. Before and after Miranda, “[w]here conditions did not overbear a defendant’s will, statements have been held admissible.” Wright, 441 Mich at 167, citing People v Brannan, 406 Mich 104; 276 NW2d 14 (1979); People v Farmer, 380 Mich 198; 156 NW2d 504 (1968); People v Boyce, 314 Mich 608; 23 NW2d 99 (1946). Even after Miranda and Bender, this Court has referred to Moran for the appropriate “knowing and intelligent” waiver standard, and stated that “[t]o knowingly waive Miranda rights, a suspect need not understand the ramifications and consequences of choosing to waive or exercise the rights that the police have properly explained to him” and “[l]ack of foresight is insufficient to render an otherwise proper waiver invalid.” People v Cheatham, 453 Mich 1, 28-29; 551 NW2d 355 (1996) (citations omitted). Thus, Bender’s heightened requirement for a Miranda waiver to be made “knowingly” is inconsistent with this Court’s previous treatment of the requirement.
This Court’s precedents did not foreshadow, or otherwise provide support, for Bender. Nor do this Court’s precedents support a finding that
4. BENDER vs. MORAN
This Court’s independent constitutional analysis of
Miranda was initially intended by the United States Supreme Court (at least until its later decision in Dickerson)34 to serve as “one possible formula” by which to dispel the coercive atmosphere implicit in custodial interrogation; its purpose was to alleviate what it viewed as the
Our independent examination of
If there is any police misconduct, the suspect is unaware of such events because it is directed toward the attorney. Facts and events unknown to the suspect cannot have a coercive effect on the suspect. Therefore, the attorney’s efforts and/or presence is irrelevant to the suspect’s ability to make a voluntary, knowing, and intelligent waiver of his Miranda rights. Moreover, as the suspect is still read his Miranda rights, such events do not operate to deprive the suspect of the knowledge of his rights.
To argue or conclude that a defendant, who by the good fortune of a family member hiring an attorney, must be told of the attorney’s attempts to make contact in order to make a knowing and
intelligent waiver of Miranda rights is illogical and nonsensical. In fact, for the majority’s reasoning to make sense, the majority would have to conclude that persons who are capable of retaining an attorney, or have family or friends who are capable of hiring a retained attorney, are not capable of making a knowing and intelligent waiver of Miranda rights even when the attorney is not present. As is evident by the admissibility of a suspect’s Miranda waiver in the ordinary custodial interrogation situation, the majority would not so conclude. [Carroll, A Look at People v Bender: What Happens when the Michigan Supreme Court Oversteps Its Power to Achieve A Results-Oriented Decision, 74 U Det Mercy L Rev 211, 236-237 (1997) (citations omitted).]
We therefore agree with Moran that an outside and unperceived development, such as an attorney’s presence and initiation of contact with police, “can have no bearing on [a suspect’s] capacity to comprehend and knowingly relinquish a constitutional right.” Moran, 475 US at 422.36 Instead, as noted by the United States Supreme Court in Colorado v Spring, 479 US 564, 577; 107 S Ct 851; 93 L Ed 2d 954 (1987), “the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.” It might not be in a suspect’s best interest to make a statement, but this Court need not concern itself with the wisdom of a suspect’s confession. To the contrary, voluntary but “foolish” confessions should be welcomed, as a suspect’s perhaps unwise but purely voluntary urge to tell the truth is vital in assisting the fact-finder in ultimately ascertaining the truth of what occurred.37
In sum, independent examination of
C. STARE DECISIS
When this Court determines that a case has been wrongly decided, as we do here with regard to Bender, it must next determine whether it should overrule that precedent, a decision that should never be undertaken lightly. The application of stare decisis is “generally ‘the preferred course, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’” Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). However, “stare decisis is a ‘principle of policy’ rather than ‘an inexorable command,’ and . . . the Court is not constrained to follow precedent when governing decisions are unworkable or are badly reasoned.” Robinson, 462 Mich at 464 (citations omitted). This Court has discussed the proper circumstances under which it will overrule prior case law:
This Court has stated on many occasions that “[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” . . . [.] “Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.” When it becomes apparent that the reasoning of an opinion is erroneous, and that less mischief will result from overruling the case rather than following it, it becomes the duty of the court to correct it. [People v Graves, 458 Mich 476, 480-481; 581 NW2d 229 (1998) (citations omitted) (alteration in original).]
When performing a stare decisis analysis, this Court should review inter alia “whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.” Robinson, 462 Mich at 464 (citation omitted). As for the reliance interest, “the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Id. at 466.
When questions before this Court implicate the Constitution, this Court arguably has an even greater obligation to overrule erroneous precedent. “[A] judicial tribunal is most strongly justified in reversal of its precedent when adherence to such precedent would perpetuate a plainly incorrect interpretation of the language of a constitutional provision or statute.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 181; 615 NW2d 702 (2000), citing Robinson, 462 Mich at 463-468. This is because “the policy of stare decisis ‘is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.’” Kyser v Kasson Twp, 486 Mich 514, 534, n 15; 786 NW2d 543 (2010), quoting Agostini v Felton, 521 US 203, 235; 117 S Ct 1997; 138 L Ed 2d 391 (1997). Thus, it is “our duty to reexamine a precedent where its reasoning or understanding of the Constitution is fairly called into question.” Robinson, 462 Mich at 464, quoting Mitchell v W T Grant Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d 406 (1974) (Powell, J., concurring). Although Bender disclaimed reliance on Michigan’s Constitution, it nonetheless vaguely referred to its provisions in enacting its “prophylactic” rule, suggesting that this Court has a duty to review this decision under less deferential standards of stare decisis in light of our role as the final judicial arbiter of this Constitution.38
We conclude that overruling Bender would not produce “practical real-world dislocations,” primarily because Bender obviously cannot be said to have caused suspects to “alter their conduct in any way.” See People v Petit, 466 Mich 624, 635; 648 NW2d 193 (2002). As Moran noted, “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Moran, 475 US at 422. It seems highly unlikely that a suspect being interrogated, after a day earlier having expressly refused to waive his right to counsel and then reconsidering that decision by affirmatively seeking to speak with police and then expressly waiving his right to counsel, would thereafter rely on Bender in determining that he need not ask for an attorney because the officers have a legal duty to inform him that an attorney has initiated contact with them. Although a suspect might later come to have second thoughts and prefer that he had not waived his right to counsel, “[s]uch after-the-fact awareness does not rise to the level of a reliance interest because to have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.” Robinson, 462 Mich at 466-467. Consequently, Bender has not become so “fundamental to everyone’s expectations” that to overrule it would result in “real-world dislocations.” Id. at 466. Further, that Bender can fairly be considered to be “workable,” in the sense that the police may clearly understand their legal obligations to a defendant and his attorney, does not render “practically unworkable” a regime in which a defendant’s rights are just as clearly understood.
Contrary to Bender, we do not believe that increased “mischief” will result from this Court’s failure to maintain the rule expounded in that case as the constitutional law of this state. As already noted, we agree with Moran that the constitutional “voluntariness” of a confession or incriminating statement is not implicated by the failure of police to inform the defendant of the presence of an attorney before proceeding with a custodial interrogation after
Moran accurately highlighted the competing policies informing both Miranda and its progeny, including Moran itself:
Custodial interrogations implicate two competing concerns. On the one hand, “the need for police questioning as a tool for effective enforcement of criminal laws” cannot be doubted. Admissions of guilt are more than merely “desirable,” they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law. On the other hand, the Court has recognized that the interrogation process is “inherently coercive” and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion. Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation. . . . Police questioning, often an essential part of the investigatory process, could continue in its traditional form, the Court held, but only if the suspect clearly understood that, at any time, he could bring the proceeding to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators.
The position urged by [defendant] would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the
Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney’s efforts to contact him would contribute to the protection of theFifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society’s legitimate and substantial interest in securing admissions of guilt. [Moran, 475 US at 426-427 (citations omitted).]
The Moran Court’s concern that further protections against self-incrimination, such as those set forth in Bender, would impinge on the effectiveness of law enforcement are entirely valid, in our judgment. Neither the
Because we believe that less, not more, “mischief” will likely result from overruling the case, we are further persuaded of the need to overrule Bender. See Graves, 458 Mich at 480-481, citing McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904) (stating that in reversing precedent, the Court “should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it“).
V. CONCLUSION
An examination of Michigan’s Constitution and a review of this Court’s precedents compel the conclusion that Bender was wrongly decided and should now be overruled. In accordance with Moran, we hold that “[o]nce it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Moran 475 US at 422-423. Although this Court need not interpret a provision of our Constitution in the same manner as a similar or identical federal constitutional provision, we are persuaded in the present instance, on the basis of our examination of
YOUNG, C.J., and KELLY, ZAHRA, and VIVIANO, JJ., concurred with MARKMAN, J.
CAVANAGH, J. (dissenting). In People v Bender, 452 Mich 594, 620; 551 NW2d 71 (1996) (opinion by CAVANAGH, J.); id. at 623 (opinion by BRICKLEY, C.J.), we held that police cannot conceal from suspects that counsel has been made available to them.1 Although that decision has stood for nearly 20 years, today the majority casts Bender aside as “wrongly decided.” Because I continue to believe that Bender correctly announced a rule firmly rooted in the Michigan Constitution, I dissent.
The majority explains its decision by first stating that, in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), the United States Supreme Court reached the opposite conclusion. However, as the majority acknowledges, the divergent results in Moran and Bender cannot support the majority’s conclusion that Bender was wrongly decided. Indeed, according to the United States Supreme Court, “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.” Oregon v Hass, 420 US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975), citing Cooper v California, 386 US 58, 62; 87 S Ct 788; 17 L Ed 2d 730 (1967), and Sibron v New York,
392 US 40, 60-61; 88 S Ct 1889; 20 L Ed 2d 917 (1968). Moreover, Moran extended this broad premise to the exact issue at hand, stating, “[n]othing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Moran, 475 US at 428. Finally, we have consistently concluded that we are not bound in our understanding of the Michigan Constitution by any particular interpretation of the United States Constitution. See, e.g., Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d 767 (2003).
Given that we are clearly free to interpret our Constitution more broadly than the United States Supreme Court has interpreted the federal Constitution, and the United States Supreme Court has permitted the creation of rules like the one from Bender, one must ask what is so wrong about Bender that it must be abandoned after nearly two decades of problem-free application in our state? According to the majority, Michigan’s Constitution does not support Bender’s rule. I disagree.
Although the language of
II. PEOPLE v CAVANAUGH: THE ORIGIN OF BENDER‘S FOUNDATION IN THE MICHIGAN CONSTITUTION
In support of its conclusion that Bender is not rooted in the Michigan Constitution, the majority toils away for page after page of analysis arguing that the Michigan Constitution only protects a suspect from involuntary confessions. Moreover, the majority limits the scope of “involuntary confessions” to only those confessions that satisfy the dictionary definition of “compelled.”
The result is that in the majority‘s view, a confession is inadmissible under
The problem with the majority‘s view is twofold: first it is rooted in a hyper-textualist analysis of the word “compelled” in
In 1929, long before adoption of the 1963 Michigan Constitution, we considered a case in which the police denied counsel‘s request to speak with his client, whom the police were interrogating. Cavanaugh, 246 Mich. at 687. In Cavanaugh, we found the police conduct impermissible, stating:
“[H]olding an accused incommunicable, is condemned by every principle of fairness, ... is forbidden by the constitutional guaranty of due process of law, and inhibited by the right of an accused to have the assistance of counsel.... Holding an accused incommunicable to parents and counsel is a subtle and insidious method of intimidating and cowing....” [Id. at 686 (emphasis added).]
Cavanaugh also provided, “In this State ... police [may not], having custody of one accused of crime, deny an attorney, employed by or in behalf of a prisoner, the right to see and advise the accused.” Id. at 688 (emphasis added).
As I explained in Wright, “it is clear that Cavanaugh, in view of its reference to the law ‘[i]n this State,’ ... was not referring to any rights under the federal constitution; rather, it was referring to the rights existing under our state constitution.” Wright, 441 Mich. at 158 (opinion by CAVANAGH, C.J.) (emphasis added). Indeed, this Court later concluded that Cavanaugh relied on “the Michigan constitutional guarantee of due process,” which was then contained in
After understanding that Cavanaugh interpreted the Michigan Constitution, the next question is whether Cavanaugh interpreted the state constitutional language more broadly than the language of its federal counterpart. As previously noted, Cavanaugh concluded that “holding an accused incommunicable ... is forbidden by the constitutional guaranty of due process of law, and inhibited by the right of an accused to have the assistance of counsel.” Cavanaugh, 246 Mich. at 686 (emphasis added). Holding a suspect “incommunicable” is substantially different from “inflicting physical force” or “cruel treatment,” which, according to the majority, is the only type of “compulsion” that the Michigan Constitution prohibited pre-Miranda. Nevertheless, Cavanaugh concluded that the defendant‘s confession was obtained in violation of what is now
In order to sidestep this inconsistency, the majority argues that Cavanaugh is distinguishable from Bender because Cavanaugh concluded that the defendant‘s confession was not voluntary, whereas Bender concluded that the defendant‘s waiver of rights was not made knowingly. The majority is correct that Cavanaugh did not mention whether the defendant‘s waiver of rights was made “knowingly” under the Michigan Constitution and instead referred to the “voluntariness” of the confession. However, as previously discussed, that is not surprising, given that Cavanaugh was decided 37 years before Miranda established the “knowing and intelligent” terminology referred to in Bender. Yet, concluding that Cavanaugh did not create the foundation for Bender on these grounds is, in my opinion, an oversimplification of Cavanaugh.
In my view, Cavanaugh foreshadowed Miranda‘s understanding of the nature of the right protected by the constitutional guarantee that a person will not be “compelled” to be a witness against himself. Because Cavanaugh referred to
Critically, incommunicado interrogation was at the center of the United States Supreme Court‘s explanation of the “knowing and intelligent” requirement in Miranda: “The current practice of incommunicado interrogation is at odds with one of our Nation‘s most cherished principles—that the individual may not be compelled to incriminate himself.” Miranda, 384 U.S. at 457-458 (emphasis added). Moreover, Miranda expressly acknowledged that incommunicado interrogation is not like coercion, violence, force, or pressure that the majority in this case discusses. See id. at 457 (“To be sure, [incommunicado interrogation] is not physical intimidation....“). Nevertheless, Miranda concluded that incommunicado interrogation “is equally destructive of human dignity,” id., and, therefore, violates a suspect‘s privilege against self-incrimination.
Because Cavanaugh‘s explanation of the impropriety of the incommunicado interrogation methods used to extract the defendant‘s confession is strikingly similar to the impermissible interrogation methods that Miranda discussed, Cavanaugh is, in my view, more properly classified as consistent with Miranda‘s “knowing and intelligent” standard. Stated differently, although Cavanaugh did not use the yet-to-be-created Miranda terminology, Cavanaugh nevertheless is consistent with Miranda‘s analysis and conclusion concerning knowing and intelligent waivers because Cavanaugh did not address coercive police conduct that affected the voluntariness of a suspect‘s confession.5 The majority rejects this view and instead concludes that Cavanaugh never “hinted that a defendant must have some idea of his or her ‘rights‘....” Ante at 242. I disagree because, in my view, an obvious result of holding a suspect incommunicado is that the suspect will lack knowledge of his or her rights, a conclusion that is even truer when the suspect is unaware that counsel, who could educate the suspect on those rights, is actively seeking to communicate with the suspect. Thus, in my view, Cavanaugh evidences that this Court did not interpret the Michigan Constitution to prohibit only confessions obtained by “inflicting physical force” or
counsel‘s request to communicate with a suspect amounts to impermissible incommunicado interrogation in violation of
The majority also attempts to distinguish Cavanaugh from Bender by arguing that Miranda protects only against police coercion and Bender therefore “falls considerably outside the scope of the custodial interrogation process which defined the constitutional rationale for Miranda.” Ante at 246, citing Colorado v. Connelly, 479 U.S. 157, 170; 107 S. Ct. 515; 93 L. Ed. 2d 473 (1986). Accordingly, the majority appears to argue that there is no material difference between the pre-Miranda test to determine whether a suspect‘s confession was voluntary and the post-Miranda test to determine whether a suspect‘s waiver was “knowing and intelligent.” However, that approach ignores that Miranda requires analysis of two distinct prongs—the voluntariness prong and the knowing and intelligent prong. Thus, the majority makes the fallacious assumption of a complete unity between the determinative factors of the pre-Miranda Fourteenth Amendment due process analysis (which was concerned solely with coercive police conduct that affected the voluntariness of a suspect‘s confession) and the post-Miranda waiver analysis (which requires analysis of two distinct
prongs, only one of which—i.e., voluntariness—is logically, or in any other respect, related to coercive police practices). [People v. Cheatham, 453 Mich. 1, 52-53; 551 N.W.2d 355 (1996) (CAVANAGH, J., concurring in part).]
Connelly does not, however, support the majority‘s conclusion that Miranda protects only against police coercion. Rather, Connelly simply held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment,” and determined that “[t]here is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” Connelly, 479 U.S. 167, at 169-170 (emphasis added). Thus, although it is unmistakable that coercive police conduct is as necessary to a finding of involuntariness under Miranda as it is under the substantive protection of the Fourteenth Amendment Due Process Clause, “[i]t is only with respect to the completely distinct ‘knowing and intelligent’ prong of a Miranda waiver analysis ... that coercive police conduct is not required, either by logic or by law.” Cheatham, 453 Mich. at 54 (CAVANAGH, J., concurring in part).
That is not to say that courts should ignore police conduct when applying the knowing-and-intelligent prong of a Miranda analysis. Police conduct may still be relevant to the knowing-and-intelligent prong because “any police conduct that could have an effect on a suspect‘s requisite
The majority also argues that Cavanaugh is irrelevant because, in Cavanaugh, the police denied the suspect‘s request for counsel, whereas Bender addressed denial of counsel‘s request to communicate with a suspect. However, Cavanaugh clearly encompassed police refusal to honor counsel‘s requests to speak to the suspect. Specifically, Cavanaugh quoted police testimony establishing that the police denied a request by the suspect‘s father and a request by the suspect‘s counsel to speak to the suspect. Cavanaugh, 246 Mich. at 686-687. Citing those facts, Cavanaugh condemned the police conduct, stating:
In this State a parent may not be denied the right to see and have conversation with a child in jail and accused of crime. Neither may police, having custody of one accused of crime, deny an attorney, employed by or in behalf of a prisoner, the right to see and advise the accused. [Id. at 688 (emphasis added).]
Thus, Cavanaugh is applicable not only to situations in which the suspect‘s request for an attorney is denied, but to situations in which counsel‘s request to speak to a suspect is denied, as well.
Finally, the majority argues that Cavanaugh cannot support Bender because Cavanaugh employed a “totality of the circumstances” rule rather than the per se rule applied in Bender. The fact that Cavanaugh and Bender differed on what test should result from police interference with counsel‘s efforts to speak to a suspect does not lessen the fact that Cavanaugh and Bender agreed that such police conduct is unconstitutional under the Michigan Constitution. Indeed, the police also ignored the defendant‘s express request for counsel in Cavanaugh, but Cavanaugh nevertheless applied a totality of the circumstances rule. As the majority recognizes, were those circumstances to occur today, the subsequent confession would be per se inadmissible under Miranda, 384 U.S. at 474. However, Cavanaugh‘s conclusion that ignoring the defendant‘s request for counsel was unconstitutional is no less correct today simply because Cavanaugh applied a totality of the circumstances rule rather than the Miranda per se rule. Similarly, Cavanaugh‘s conclusion that ignoring counsel‘s request to communicate with the suspect was unconstitutional is no less correct today simply because Cavanaugh applied a totality of the circumstances rule rather than the Bender per se rule.
Moreover, as I explained in Bender, ” ‘a purported waiver [of Miranda] can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice.’ ” Bender, 452 Mich. at 616 (opinion by CAVANAGH, J.), quoting Bryan v. State, 571 A.2d 170, 176 (Del. 1990) (emphasis omitted). ” ‘When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have
Once it is understood that Cavanaugh prohibited police interference with counsel‘s efforts to communicate with a suspect based on the same state constitutional language that was applied in Bender, the next question is whether Bender merely continued to apply Cavanaugh‘s previously created rule or, as the majority argues, created a rule that did not exist before Bender. Therefore, I will review Bender and the plurality opinions from Wright, 441 Mich. 140, Bender‘s predecessor.
III. PEOPLE v WRIGHT AND PEOPLE v BENDER
As the majority explains, Bender resulted in multiple opinions, and only Chief Justice BRICKLEY‘s opinion garnered four votes. In addition, as the majority states, Chief Justice BRICKLEY‘s opinion labeled the result of its holding a “prophylactic rule.” Bender, 452 Mich. at 621 (opinion by BRICKLEY, C.J.). However, I disagree with the majority that the arguably “prophylactic” character of the Bender rule deprives the rule of constitutional status. Rather, considering Chief Justice BRICKLEY‘s opinion in its entirety, it is clear that he viewed Bender‘s “prophylactic” rule in the same mold as Miranda‘s “prophylactic” rule. See id. at 620-621 (expressing a preference to “approach the law enforcement practices that are at the core of this case in the same manner as the United States Supreme Court approached the constitutional interpretation task in [Miranda]; namely, by announcing a prophylactic rule“). And, notably, the United States Supreme Court has since explained that although Miranda is labeled a “prophylactic” rule, it is nevertheless a constitutional rule. See Dickerson v. United States, 530 U.S. 428, 438-440, 444; 120 S. Ct. 2326; 147 L. Ed. 2d 405 (2000).
Moreover, Chief Justice BRICKLEY‘s Bender opinion indisputably recognized the constitutional underpinnings of its analysis. For example, Chief Justice BRICKLEY noted that the case “rather clearly implicates both the right to counsel (
Regardless of whether Chief Justice BRICKLEY‘s Bender opinion definitively rooted its analysis in the Michigan Constitution, I nevertheless retain my belief that the Bender rule is a product of our Constitution, because
As I did in Bender, I continue to recognize that “[u]nder federal law, a waiver is knowingly and intentionally made where no police coercion was involved and where the defendant understands that he has the right to remain silent and that the state intends to use what he says to secure a conviction.” Id. at 612, citing Moran, 475 U.S. at 422-423. However, it is also my opinion that “in Michigan, more is required before the trial court may find a knowing and intelligent waiver.” Bender, 452 Mich. at 612 (opinion by CAVANAGH, J.). Specifically, “in order for a defendant to fully comprehend the nature of the right being abandoned and the consequences of his decision to abandon it, he must first be informed that counsel, who could explain the consequences of a waiver decision, has been retained to represent him.” Id. at 612-613. This is true because
“[w]hen that information is withheld, the suspect‘s waiver of the right to counsel and to remain silent is more abstract than real, becoming, in effect, a waiver of a theoretical right that is uninformed by the material knowledge that retained counsel, present and available to assist the suspect in the full exercise of his or her rights, is just outside the door.” [Id. at 612 n 16, quoting State v. Reed, 133 N.J. 237, 274; 627 A.2d 630 (1993).]
Stated differently, I am
“unwilling ... to dismiss counsel‘s effort to communicate as constitutionally insignificant to the capacity of the suspect to make a knowing and intelligent choice whether he or she will invoke the right to counsel. Miranda warnings refer only to an abstract right to counsel. That a suspect validly waives the presence of counsel only means that for the moment the suspect is foregoing the exercise of that conceptual privilege. Faced with a concrete offer of assistance, however, a suspect may well decide to reclaim his or her continuing right to legal assistance. To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be
arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second. We cannot therefore conclude that a decision to forego the abstract offer contained in Miranda embodies an implied rejection of a specific opportunity to confer with a known lawyer.” [Bender, 452 Mich. at 612 n 16 (opinion by CAVANAGH, J.), quoting State v. Stoddard, 206 Conn. 157, 168; 537 A.2d 446 (1988) (quotation marks omitted).]
Finally, in response to today‘s majority, I reiterate my response to the Bender dissent‘s assertion that the Michigan Constitution‘s privilege against self-incrimination provides no greater protection than the Fifth Amendment: “when interpreting
I also note that Justice BRICKLEY‘s dissent in Sexton, 458 Mich. at 69-70 (BRICKLEY, J., dissenting), and my opinion in Bender, 452 Mich. at 611-612 (opinion by CAVANAGH, J.), cited the plurality opinions in Wright. Thus, although no opinion in Wright garnered majority support, Wright provides further insight into the constitutional basis for the Bender rule.
In Wright, Justice MALLETT, joined by Justice LEVIN, explained that “[u]nder
I concurred with Justice MALLETT‘s conclusion that the privilege against self-incrimination under the Michigan Constitution is broader than the privilege under the United States Supreme Court‘s interpretation of the Fifth Amendment. Wright, 441 Mich. at 155-156 (opinion by CAVANAGH, C.J.). I provided further support for that conclusion by noting that, as far back as 1929, this Court had determined that the privilege against self-incrimination under the state Constitution made it unlawful for police to deny an attorney access to his client. Id. at 157-158, citing Cavanaugh, 246 Mich. 680. Finally, Justice BRICKLEY also authored a concurring opinion in Wright, emphasizing the holding in Cavanaugh in support of the conclusion that the Michigan Constitution provides a broader privilege against self-incrimination than the federal Constitution. Wright, 441 Mich. at 168 (opinion by BRICKLEY, J.), citing Cavanaugh, 246 Mich. 680.
Therefore, after tracing the rule prohibiting the police from denying an attorney access to a client undergoing police interrogation from Bender back to Wright, it is
By rejecting Bender on the grounds that it lacks moorings in the Michigan Constitution, the majority erroneously adopts a “literal application” of
history of this Court” embodied in Cavanaugh and continued in Wright and Bender “in favor of the analysis of the United States Supreme Court....” Sitz v. Dep‘t of State Police, 443 Mich. 744, 758; 506 N.W.2d 209 (1993). In doing so, the majority “disregard[s] the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has ... not extended such protection.” Id. at 759.
IV. ADDITIONAL AND INDEPENDENT SUPPORT FOR BENDER IN THE MICHIGAN CONSTITUTION
Although I believe that
“There is some overlap between the privilege against self-incrimination ... and the right to counsel;” however, ” ‘the right to counsel cases are concerned with the integrity of the adversarial process.’ ” Wright, 441 Mich. at 156 n. 2 (opinion by CAVANAGH, C.J.), quoting Loewy, Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 Mich L Rev 907, 928 (1989). As I stated in Wright, 441 Mich. at 156 n. 2 (opinion by CAVANAGH, C.J.), I believe that permitting
police to frustrate counsel‘s efforts to communicate with a suspect “threatens the adversarial system by allowing the police to manipulate the interrogation process,” which is particularly problematic in Michigan, given that under the decision of a majority of this Court in People v. Cipriano, 431 Mich. 315; 429 N.W.2d 781 (1988), police can purposely delay a suspect‘s arraignment. In my view, the majority today exacerbates the errors in Cipriano by sanctioning police
Kirby v. Illinois, 406 U.S. 682, 688; 92 S. Ct. 1877; 32 L. Ed. 2d 411 (1972), established the federal limitation on when the right to counsel attaches: the right attaches “only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby further stated that, as an example, the right attaches “at the time of arraignment....” Id. However, in Michigan, the federal limitation was at least partially rejected in People v. Anderson, 389 Mich. 155; 205 N.W.2d 461 (1973), and People v. Jackson, 391 Mich. 323, 338; 217 N.W.2d 22 (1974) (stating that “independent of any Federal constitutional mandate, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification“). Therefore, “[a]lthough Jackson and Anderson were not explicitly premised on either the
that prearraignment events can trigger our state constitutional right to counsel.” Wright, 441 Mich. at 159-160 (opinion by CAVANAGH, C.J.).
I continue to believe that Jackson‘s and Anderson‘s rejection of the Kirby restriction is proper because the Kirby restriction is arbitrary. Specifically, as explained in Patterson v. Illinois, 487 U.S. 285, 290 n. 3; 108 S. Ct. 2389; 101 L. Ed. 2d 261 (1988), post-indictment Miranda waivers are sufficient only until an actual attorney-client relationship is established and nothing changes at the time of formal charging if there was no attorney-client relationship yet established. Thus, “[t]he converse must also hold true: If an attorney-client relationship exists before arraignment, nothing will change at the time of arraignment to cause the right to counsel to suddenly blossom where none existed before.” Wright, 441 Mich. at 160 (opinion by CAVANAGH, C.J.). Accordingly, Anderson and Jackson correctly recognized that there are “critical stages” in prosecution that can occur before formal charging. I continue to believe that “custodial interrogation of an accused who is represented by counsel is just such a situation.” Id. at 160-161. Moreover, in my view, “the police can be held accountable for knowing that the accused is represented by counsel ‘to the extent that the attorney or the suspect informs the police of the representation.’ ” Id. at 161, quoting Moran, 475 U.S. at 460 n. 46 (Stevens, J., dissenting).
Accordingly, because I believe that a suspect “faced with custodial interrogation has the specific right, as part of his overall right to counsel, to be informed of his attorney‘s attempts to contact him,” I would hold that “a waiver of that right cannot be valid when the police merely inform the suspect, in generalized terms, that he has the right to a lawyer if he wishes.” Wright, 441 Mich. at 161 n. 5 (opinion by CAVANAGH, C.J.). Simply stated, “[a] defendant cannot knowingly and intelligently waive his specific right to speak with an attorney who is immediately available and trying to contact him when he is unaware that the attorney is available and trying to contact
In summary, contrary to the majority‘s conclusion that Bender lacks any connection to the Michigan Constitution, our caselaw establishes that Bender is firmly rooted in
V. STARE DECISIS
In light of the preceding analysis, it is clear that Bender is founded on the Michigan Constitution and is consistent with this Court‘s prior precedent. Bender was correctly decided and no further stare decisis consideration is needed. However, even accepting the majority‘s faulty conclusion that Bender was wrongly decided, I do not agree that its decision to overrule Bender is supported by stare decisis principles.
The United States Supreme Court has explained that the doctrine of stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827; 111 S. Ct. 2597; 115 L. Ed. 2d 720 (1991). Our longstanding doctrine of stare decisis provides that “principles of law
deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” Brown v Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215 (1996) (quotation marks and citations omitted), overruled in part on other grounds by Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007). As a result, “a stare decisis analysis should always begin with the presumption that upholding the precedent involved is the preferred course of action.” Petersen v Magna Corp, 484 Mich 300, 317; 773 NW2d 564 (2009) (opinion by MARILYN KELLY, C.J.). Thus, “overturning precedent requires more than a mere belief that a case was wrongly decided,” McCormick v Carrier, 487 Mich 180, 211; 795 NW2d 517 (2010), and the presumption in favor of upholding precedent “should be retained until effectively rebutted by the conclusion that a compelling justification exists to overturn the precedent.” Petersen, 484 Mich at 317 (opinion by MARILYN KELLY, C.J.).
Moreover, when our caselaw concludes that the
Several of the criteria discussed in Petersen10 weigh in favor of upholding Bender rather than overruling it: (1) Bender provides a practical and workable rule; (2) facts and circumstances have not changed, or come to be seen so differently, as to have robbed Bender of significant application
Bender‘s per se rule prohibiting police interference with counsel‘s efforts to communicate with a suspect is easily understood by the police and creates little, if any, uncertainty regarding what is required: the police must inform a suspect that counsel has been retained for him and is attempting to contact him. Bender, 452 Mich at 620 (opinion by CAVANAGH, J.). See, also, Wright, 441 Mich at 163-164 (opinion by CAVANAGH, C.J.) (stating that “if an attorney takes diligent steps to inform the police that he represents and wishes to contact a suspect held in custody, the police must take prompt and diligent steps to inform the suspect of that fact“). Accordingly, as even the majority admits, Bender provides a practical and workable rule. See ante at 253. This factor therefore weighs heavily in favor of upholding Bender.
Nevertheless, the majority inexplicably applies an approach that merely pays lip service to the obvious practical workability of Bender while primarily considering whether a regime other than the Bender rule might be equally workable. A stare decisis analysis focuses on the established rule‘s workability; not whether some other rule may or may not be applied as easily as the established rule. See Petersen, 484 Mich at 320 (opinion of MARILYN KELLY, C.J.) (considering “whether the rule has proven to be intolerable because it defies practical workability“) (emphasis added); and Robinson, 462 Mich at 464 (considering “whether the decision at issue [i.e., the established rule] defies ‘practical workability’ “) (emphasis added). That focus on the established rule is consistent with the understanding that upholding the precedent involved is “the preferred course, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998) (citation and quotation marks omitted). See, also, Petersen, 484 Mich at 317 (opinion by MARILYN KELLY, C.J.). The majority‘s faulty stare decisis analysis features its attempt to manipulate this factor with an approach that lacks any support in caselaw and all but ignores the practical workability of the existing rule.
Further supporting the conclusion that Bender should not be overruled is the fact that circumstances have not come to be seen so differently as to have robbed Bender of significant justification. Indeed, protection of a citizen‘s constitutional rights within the custodial-interrogation setting remains as important today as it was when Bender was decided 18 years ago, as evidenced by this Court‘s and the United States Supreme Court‘s repeated consideration of the issue.
Moreover, many states have, as Michigan did in Bender, recognized that Moran merely establishes a minimum requirement and have determined that their citizens enjoy greater state constitutional protection than afforded by Moran.11 As a
Finally, in my view, the most significant factor in favor of upholding Bender is that the majority‘s contrary decision is likely to result in serious detriment prejudicial to public interests. The majority disagrees, claiming that “[i]t is hard to comprehend a societal interest that is furthered by protecting persons who have engaged in serious criminal activities from the consequences of their own voluntary and intelligent decisions.” Ante at 255. To begin with, this statement entirely ignores the overriding principle of our criminal justice system: that a suspect is presumed innocent until proven guilty beyond a reasonable doubt. Thus, whether there is a “societal interest” in protecting any particular conduct of a person who has “engaged in serious criminal activities” is entirely irrelevant. However, in my view, the “societal interest” in protecting the ability of those merely accused of a crime to make a truly “knowing and intelligent” waiver of their constitutional rights is of the highest order. Moreover, “if law enforcement officers adhere to [Bender], there will be no reversal of convictions on the basis of failure by officers to inform the suspect that his counsel wished to speak with him before he made a confession.” Bender, 452 Mich at 597 n 1 (opinion by CAVANAGH, J.). Therefore, if a Bender violation occurs, “it will be a government agent, and not this Court, that is responsible for thwarting and hampering cases of urgent social concern....” Id.
Moreover, I disagree with the majority‘s subjective and unsupported conclusion that Bender “impinge[s] on the effectiveness of law enforcement...” Ante at 254. For starters, it does not appear that Michigan‘s law enforcement has suffered from a serious inability to effectively enforce the law in the 18 years since Bender was decided.12 Apparently, the many other states that have declined to follow Moran have likewise managed to avoid becoming lawless wastelands of crime, despite the majority‘s concern. See, also, Moran, 475 US at 460 (Stevens, J., dissenting) (stating that an argument similar to
Although I think that the majority‘s concern that Bender unduly interferes with law enforcement is exaggerated, I am nevertheless aware that the Bender rule “may decrease the likelihood that interrogating officers will secure a confession.” Bender, 452 Mich at 618 (opinion by CAVANAGH, J.). However, that cost must be balanced against the result of the majority‘s favored rule. “[P]olice deception of a suspect through omission of information regarding attorney communications greatly exacerbates the inherent problems of incommunicado interrogation....” Moran, 475 US at 452 (Stevens, J., dissenting). Accordingly, while confessions “are not only a valid, but also an essential part of law enforcement,” Bender, 452 Mich at 597 n 1 (opinion by CAVANAGH, J.), ” ‘[t]he quality of a nation‘s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.’ ” Miranda, 384 US at 480, quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv L Rev 1, 26 (1956).
No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his rights to remain silent and to counsel]. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. [Escobedo v Illinois, 378 US 478, 490; 84 S Ct 1758; 12 L Ed 2d 977 (1964).]
VI. CONCLUSION
Bender has stood undisturbed for nearly 20 years and has foundations as far back as 1929. See Ca-vanaugh, 246 Mich 680. Moreover, Bender correctly determined that
MCCORMACK, J. (dissenting). I respectfully dissent from the majority‘s decision to use this case as a vehicle for overruling People v Bender, 452 Mich 594; 551 NW2d 71 (1996). While I agree with the majority that “stare decisis is a principle of policy rather than an inexorable command,” I do not find adequate reason to depart from the “preferred course” of leaving Bender‘s settled precedent intact. Robinson v Detroit, 462 Mich 439, 463-464; 613 NW2d 307 (2000) (internal quotation marks omitted). First, I do not share the majority‘s confidence that the rule recognized in Bender lacks a constitutional basis. Rather, I agree with Justice CAVANAGH that this rule is well moored in
Nor, in my mind, would any other consideration favor disruption of that precedent.1 As Justice CAVANAGH aptly explains, in the nearly twenty years since Bender was decided, there has been no indication that its straightforward rule has defied practical workability in any respect, or has produced the “mischief” and harm of which the prosecution and majority warn.2 Rather, by now removing this simple and settled rule, the majority works an undue detriment upon the constitutional protection long recognized by this Court and relied upon by the people of Michigan: that should they find themselves detained as suspects of a crime, they will not be held incommunicado from those who have been retained or appointed to advise them. And I see no changes in the law or facts that render Bender‘s recognition and implementation of this principle no longer justified. To the contrary, our current debate over the propriety of that rule simply echoes the one taken up by the Bender Court years ago; its contours have remained the same, as have the arguments and authority offered by each side in support. The Justices involved have changed (for the most part), but of course that does not warrant disturbance of our precedent.
I do, however, see one meaningful difference between the instant case and Bender, and it too counsels against the majority‘s chosen course. As the majority stresses, there was no dispute in Bender that the defendants made their incriminating statements to the police without requesting or even expressing interest in securing the representation of counsel beforehand. Nonetheless, those statements were suppressed because the police did not inform the defendants of the counsel that their parents had unilaterally decided to retain for them. This fact animated the Bender dissent‘s chief objections to that decision‘s per se rule, shared by the majority here: that it permits suppression of confessions based strictly on circumstances beyond the cognizance and apparent concern of the suspect, the individual to whom the constitutional rights at issue belong. See Bender, 452 Mich at 649-650, 656 (BOYLE, J., dissenting).
The instant case, however, is not Bender, and these concerns are not implicated. For, unlike the defendants in Bender, the defendant‘s incriminating statements in
It was under these circumstances that the defendant‘s waiver of rights and incriminating statements were made. The defendant stressed these circumstances in arguing for suppression,3 and they, in turn, drove the trial court‘s determination to that effect:
Given these facts, the attorney was there, the police knew it, he was not permitted to go back and see his client. . . . [The defendant], who had once invoked his right to remain silent and had indicated at least on the 18th with knowledge to the police officials that he might possibly be interested in an attorney, was not told that one was there waiting for him. Based upon that,
I will grant the motion of the Defendant to suppress [his] confession. . . . 4
Both the defendant and the trial court focused on Bender as the legal basis for this conclusion, and fairly so, as its settled and straightforward rule plainly sweeps these circumstances within its scope. The defendant‘s frustrated attempts to invoke his right to counsel, however, just as plainly implicate Cavanaugh, which sits at the core of Bender‘s rule and persists wholly intact without it. Taking Bender off the books thus does little to resolve the actual evidentiary question at issue in this case: whether the defendant‘s statements should be suppressed on constitutional grounds.5 Bender‘s rule, while certainly sufficient to sustain this relief, is not necessary to it. The majority may disapprove of that rule, but Bender is not the case before us, and I fail to see how the instant case invites or enables the majority to act on that disapproval as they have. Accordingly, I cannot
Notes
I recognize that the majority acknowledges that ”Miranda has established an irreducible minimum standard for purposes of all custodial interrogations in Michigan,” ante at 226 n 19, and thus agrees that a confession may also be inadmissible if a suspect‘s waiver of rights is not made voluntarily, knowingly, and intelligently. However, by arguing that only “involuntary confessions” are prohibited under the Michigan Constitution and that the other limitations are only the product of Miranda‘s interpretation of the federal Constitution, the majority erroneously concludes that our state courts never adopted a broader interpretation of the Michigan Constitution pre-Miranda, as will be explained later in this opinion. Accordingly, I cannot agree with the majority‘s characterization of the trial court‘s ruling as simply that the “defendant‘s statement required suppression under Bender, because the police officers had failed to inform him that an attorney was present at the jail and had established contact with the officers.” Ante at 206. While this failure was certainly enough in itself to warrant suppression under Bender, it is apparent that the trial court also found significant that this failure came in the face of the defendant‘s repeated requests for counsel. Similarly, the majority states that the trial court ruled that the defendant “affirmatively reinitiated contact with police officers on October 18, 2011, without reasserting his right to counsel.” Ante at 206. While the majority may be comfortable with that conclusion, I see no determination by the trial court to that effect. Rather, the court recognized, as described above, that the jail administrator came to speak with the defendant upon hearing of his desire to “get something off [his] chest“; “the first thing that [the defendant] brings up is he asked if [he] could get an attorney“; the administrator declined and offered to get the detectives instead; and the defendant “seemed to understand that and was agreeable for him to get the detectives.” Nor, given these circumstances, did the trial court put much stock in the prosecution‘s “no good deed goes unpunished” lament—echoed by the majority here—that counsel‘s appointment was simply a precautionary measure, voluntarily undertaken and wholly conditional upon whether the defendant (yet again) asked for it. Instead, the court stressed that, although the detective, “and I‘m not picking on him, talks about [the attorney] being there only if needed,” there was no confusion among the detectives and the jail administrator that the attorney had been sent for the defendant, and the attorney, while perhaps unsure of the defendant‘s name at that time, “knew he was there to talk to somebody and represent them regarding possible charges of murder or homicide that would be filed . . . against them.”A final innovation of the Miranda decision was the creation of a right on the part of arrested persons to prevent questioning. The Court stated: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”
The right not to be questioned was an addition to the traditional right to refrain from answering questions on grounds of potential self-incrimination. At the time of the Constitution, suspects had no right to cut off custodial interrogation, and no right of this sort was recognized in the Supreme Court‘s decisions prior to Miranda.... [United States Department of Justice, Office of Legal Policy, The Law of Pretrial Interrogation, 22 U Mich JL Reform 393, 484 (1989), quoting Miranda, 384 US at 473-474.]
- the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest. [Collins, 438 Mich at 31 n 39, citing People v Catania, 427 Mich 447, 466 n 12; 398 NW2d 343 (1986).]
“[T]he constitutional convention is a distinctively American contribution to political theory and action. . . [I]t is the personification of the sovereign people assembled for the discharge of the solemn duty of framing their fundamental law.” [Schlam, State Constitutional Amending, Independent Interpretation, & Political Culture, 43 DePaul L Rev 269, 320 n 148 (1994), quoting Walker, Myth & Reality in State Constitutional Development, in Major Problems in State Constitutional Revision (Graves, ed, 1960), p 15 (alterations in original).]