“[G]enerally speaking, the corpus delicti of an offense is the body of the wrong or injury.” People v Modelski, 164 Mich App 337, 341 (1987). “The corpus delicti rule is designed to prevent the use of a defendant’s confession to convict him of a crime that did not occur.” People v Washington, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). “Specifically, the rule provides that a defendant’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing (1) the occurrence of the specific injury (for example, death in cases of homicide) and (2) some criminal agency as the source of the injury.” Id. at ___ (quotation marks and citation omitted).“However, proof of the identity of the perpetrator of the act or crime is not a part of the corpus delicti.” Id. at ___(cleaned up). “It is sufficient to show that the crime was committed by someone.” Id. at ___ (quotation marks and citation omitted).
“Once this showing has been made, a defendant’s confession then may be used to elevate the crime to one of a higher degree or to establish aggravating circumstances.” People v Ish, 252 Mich App 115, 117 (2002) (cleaned up). Accordingly, “it is not necessary that the prosecution present independent evidence of every element of the offense before a defendant’s confession may be admitted.” Ish, 252 Mich App at 117.
“The corpus delicti rule requires that a preponderance of direct or circumstantial evidence, independent of a defendant’s inculpatory statements, establish the occurrence of a specific injury and criminal agency as the source of the injury before such statements may be admitted as evidence.” People v Burns, 250 Mich App 436, 438 (2002). Proof beyond a reasonable doubt is unnecessary. Modelski, 164 Mich App at 341-342 (“the prosecutor established the corpus delicti of a homicide by showing that [the victim] could not be located and ha[d] not been heard from since her sudden disappearance and by showing that defendant had a motive to kill her, his deteriorating marriage and his claim of infidelity, and by showing that defendant’s actions suggest[ed] that he had murdered [the victim]”). Notably, “the corpus delicti rule is confined to confessions.” Washington, ___ Mich at ___ (cleaned up), quoting People v Porter, 269 Mich 284, 289 (1934) (expressly distinguishing confessions from admissions). A confession is “an acknowledgment, in express terms, by a party in a criminal case, of the truth of the crime charged, by the very force of the definition logically excludes: first, acts of guilty conduct; second, exculpatory statements; third, admission of subordinate facts that do not constitute guilt . . . .” Washington, ___ Mich at ___ n 13, quoting Porter, 269 Mich at 290 (quotation marks omitted). “There must be some distinctive feature, showing guilt, in the fact acknowledged, and all other statements than those directly stating the fact of guilt are without the scope of the rule affecting the use of confessions.” Washington, ___ Mich at ___ n 13, quoting Porter, 269 Mich at 290-291 (quotation marks omitted). “Hence, the third ground of exclusion is that the admission of subordinate facts, not directly involving guilt, do not constitute a confession.” Washington, ___ Mich at ___ n 13, quoting Porter, 269 Mich at 290-291 (quotation marks omitted).
The Porter Court held that “‘defendant’s exclamation and statements were not part of a confession nor did they, of themselves, amount to a confession of guilt. They were merely admissions, which needed other facts to give them convicting force, and therefore were admissible on the corpus delicti.’” Washington, ___ Mich at ___, quoting Porter, 269 Mich at 291. Similarly, in Washington, “Defendant’s statement included only one of the two elements of the charged crime: the fact that defendant possessed body armor.” Washington, ___ Mich at ___ (“An admission of one, but not of all, the essential elements of the crime is not a confession.”) (cleaned up). “He did not admit that he was a violent felon, which would have been necessary to make his statements a confession.” Id. at ___ (holding that the corpus delicti rule did “not apply to defendant’s admissions that he possessed the bulletproof vest”).
When the corpus delicti of the underlying crime is established, admission of a defendant’s confession to being an accessory after the fact requires no independent evidence showing that the principal was assisted after committing the crime; “the corpus delicti of accessory after the fact is the same as the corpus delicti of the underlying crime itself.” People v King, 271 Mich App 235, 237 (2006). See also People v Williams, 422 Mich 381, 388-392 (1985), for a discussion of the history and development of the corpus delicti rule.
Committee Tip:
Care should be taken not to conflate the accused’s confession with other statements by the accused.
The trial court’s decision regarding application of the corpus delicti rule is reviewed for an abuse of discretion. Burns, 250 Mich App at 438.
1.Required Warnings
Miranda warnings are required when a defendant is subject to custodial interrogation. See People v Elliott, 494 Mich 292 (2013). For more information on custodial interrogations, see Section 3.14(E).
“[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v Arizona, 384 US 436, 479 (1966).
“Unless the person in custody has been given the required warnings and still waives his rights, no evidence obtained as a result of interrogation can be used against him. A person in custody may waive his rights if the waiver is made voluntarily, knowingly, and intelligently.”1 People v Clark, 330 Mich App 392, 416 (2019) (quotation marks and citations omitted).
Right to remain silent. Miranda warnings are not defective merely because a suspect is not more specifically advised they may exercise the right to remain silent at any point during the interrogation. People v Mathews, 324 Mich App 416, 429 (2018).
Right to an attorney. “[A]dvice that a suspect has ‘the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,’ and that he can invoke this right ‘at any time . . . during th[e] interview,’ satisfies Miranda.” Florida v Powell, 559 US 50, 53 (2010) (second and third alteration in original). Because “[t]he first statement communicated that [the defendant] could consult with a lawyer before answering any particular question, and the second statement confirmed that [the defendant] could exercise that right while the interrogation was underway,” the United States Supreme Court held that “[i]n combination, the two warnings reasonably conveyed [the defendant’s] right to have an attorney present, not only at the outset of interrogation, but at all times.” Id. at 62.
Contrast with Mathews, 324 Mich App at 438, which holds that “a warning preceding a custodial interrogation is deficient when the warning contains only a broad reference to the ‘right to an attorney’ that does not, when the warning is read in its entirety, reasonably convey the suspect’s right to consult with an attorney and to have an attorney present during the interrogation.”
There is no due process requirement under either the United States Constitution or the Michigan Constitution that an electronic recording be made when a defendant is informed of his or her Miranda rights, People v Geno, 261 Mich App 624, 627-628 (2004), or that a defendant’s statement be recorded by audio or visual means, People v Fike, 228 Mich App 178, 183-186 (1998). However, “[a] law enforcement official interrogating an individual in custodial detention regarding the individual’s involvement in the commission of a major felony shall make a time-stamped, audiovisual recording of the entire interrogation. A major felony recording shall include the law enforcement official’s notification to the individual of the individual’s Miranda rights.” MCL 763.8(2).
“[Q]uestioning a suspect in a police station, by itself, [cannot] provide a legal basis for a finding that a person is in custody.” People v Barritt, 325 Mich App 556, 569 n 4 (2018) (finding, however, that the defendant was in custody based on the Court’s review of the totality of the circumstances).2
“The requirement in [MCL 763.8] to produce a major felony recording is a directive to departments and law enforcement officials and not a right conferred on an individual who is interrogated.” MCL 763.10. In addition:
“Any failure to record a statement as required under [MCL 763.8] or to preserve a recorded statement does not prevent any law enforcement official present during the taking of the statement from testifying in court as to the circumstances and content of the individual’s statement if the court determines that the statement is otherwise admissible. However, unless the individual objected to having the interrogation recorded and that objection was properly documented under [MCL 763.8(3)], the jury shall be instructed that it is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” MCL 763.9.
“With MCL 763.8, the Legislature codified its preference for recorded statements. With MCL 763.9, the Legislature set forth the remedy for violating the prior section–a jury instruction. The Legislature did not codify an exclusionary rule for the part of the interrogation that was recorded,” and the Court of Appeals refused to create one. People v Clark, 330 Mich App 392, 424 (2019) (the trial court did not err “by not instructing sua sponte the jury in accordance with MCL 763.9,” where it was assumed that a missing minute or so of the defendant’s interrogation fell within MCL 763.8, because “the absent instruction did not affect defendant’s substantial rights”).
1.Invoking the Right to Silence
“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. Any statements that occur after that point are deemed to be the product of compulsion.” People v Clark, 330 Mich App 392, 416 (2019) (quotation marks and citations omitted).
The defendant must clearly invoke the Miranda rights. See People v Williams, 275 Mich App 194, 197-200 (2007) (defendant’s refusal to write out the first statement he made to the police did not constitute an invocation of his right to silence).
2.Invoking the Right to Counsel
“The assertion of the right to counsel during a custodial interrogation is a per se invocation of the right to remain silent.” People v Clark, 330 Mich App 392, 416 (2019). Accordingly, “an accused, . . . [who has] expressed his desire to deal with the police only through counsel, 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.” Edwards v Arizona, 451 US 477, 484-485 (1981).3 See also Clark, 330 Mich App at 416. “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver[4] 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.” Edwards, 451 US at 484.
The request for counsel must be unambiguous. Davis v United States, 512 US 452, 459 (1994). The suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.” Id.
3.Violation of Right to Counsel
Confessions obtained in violation of the Sixth Amendment right to counsel are generally inadmissible. People v Gonyea, 421 Mich 462, 478 (1984).
Where “the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect” and the suspect has been taken into custody for interrogation, any statement elicited by the police cannot be used against the defendant unless he or she was given an opportunity to consult with counsel and was advised of his or her right to remain silent, because such a situation constitutes a denial of the assistance of counsel in violation of the Sixth Amendment. Escobedo v Illinois, 378 US 478, 490-491 (1964).
“[S]tatements taken in violation of a defendant’s right to counsel, if voluntary, may be [admissible] for impeachment purposes although they could not have been used in the prosecutor’s case-in-chief.” People v Stacy, 193 Mich App 19, 24-25 (1992) (quotation marks and citation omitted). To use a confession deliberately elicited following arraignment in its case-in-chief, the prosecution must prove that police obtained a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right to counsel before they interrogated the accused. Patterson v Illinois, 487 US 285, 292-293 (1988). See Section 3.14(D) for more information on valid waiver of Miranda rights, including the right to counsel.
4.Violation of Privilege Against Self-Incrimination5
Confessions obtained in violation of a defendant’s Fifth Amendment privilege against compulsory self-incrimination are not admissible. Miranda v Arizona, 384 US 436, 474-477 (1966); People v Hill, 429 Mich 382, 394-395 (1987).
The following subsections discuss Miranda issues in detail.
1.Burden of Proof
When a defendant contends that his or her confession was involuntary, the prosecution must make an affirmative showing that Miranda warnings were given prior to the custodial interrogation and that a waiver was properly obtained before the defendant’s statements may be admitted in the prosecution’s case-in-chief. Miranda v Arizona, 384 US 436, 444 (1966); People v Arroyo, 138 Mich App 246, 249-250 (1984). In Miranda, 384 US at 444-445, the Court held that the prosecution must present evidence that the defendant voluntarily, knowingly, and intelligently waived his or her privilege against self-incrimination and rights to consult with counsel and to have counsel present during a custodial interrogation. If the defendant claims that he or she did not validly waive Miranda rights, the prosecution has the burden of proving by a preponderance of the evidence that there was a voluntary, knowing, and intelligent waiver of those rights. Colorado v Connelly, 479 US 157, 168 (1986); People v Daoud, 462 Mich 621, 634 (2000). The court must examine the totality of the circumstances surrounding the interrogation when evaluating the validity of a purported waiver of Miranda rights. Fare v Michael C, 442 US 707, 724-725 (1979).
See Section 3.14(F) for information on motions to suppress.
2.Voluntary, Knowing, and Intelligent Waiver – Generally
A suspect may waive his or her Miranda rights. Moran v Burbine, 475 US 412, 421 (1986). However, the defendant’s waiver must be voluntary, knowing, and intelligent. People v Howard, 226 Mich App 528, 538 (1997).6 There is a distinction between determining whether a defendant’s waiver of his or her Miranda rights was voluntary and whether an otherwise voluntary waiver was knowing and intelligent. People v Garwood, 205 Mich App 553, 555 (1994). A valid waiver of Miranda rights requires a showing that the waiver was voluntarily made—the result of the defendant’s uncoerced choice—and that the waiver was knowing and intelligent–made with complete awareness of the rights waived and the consequences of waiving those rights. Id. at 556. See also Moran, 475 US at 421.
“Whether a waiver was voluntary and whether an otherwise voluntary waiver was knowingly and intelligently tendered form separate prongs of a two-part test for a valid waiver of Miranda rights. Both inquiries must proceed through examination of the totality of the circumstances surrounding the interrogation.” People v Abraham, 234 Mich App 640, 644-645 (1999) (internal citations omitted). See also People v Tierney, 266 Mich App 687, 707 (2005) (“the analysis must be bifurcated, i.e., considering (1) whether the waiver was voluntary, and (2) whether the waiver was knowing and intelligent”).
“[T]he failure of police to inform a suspect of an attorney’s efforts to contact him does not invalidate[, under the Self-Incrimination Clause of the Michigan Constitution, Const 1963, art 1, § 17,] an otherwise ‘voluntary, knowing, and intelligent’ Miranda[7] waiver.” People v Tanner, 496 Mich 199, 249 (2014). Rather, “‘[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 [Miranda] waiver is valid as a matter of law.’” Tanner, 496 Mich at 211, 256, quoting Moran, 475 US at 422-423 (concluding “that the United States Supreme Court’s interpretation of the Self–Incrimination Clause of the Fifth Amendment in Moran [that ‘[e]vents occurring outside of the presence of the suspect and entirely unknown to him . . . have no bearing on’ the validity of a Miranda waiver] constitutes the proper interpretation of [Const 1963, art 1, § 17] as well”).
3.Factors For Determining a Voluntary Waiver
For a confession to be voluntary, the totality of the circumstances must demonstrate that the confession was “the product of a free and deliberate choice rather than intimidation, coercion, or deception,” or that the defendant’s will was “overborne and his capacity for self-determination critically impaired[.]” People v Ryan, 295 Mich App 388, 397 (2012) (quotation marks and citation omitted); People v Cipriano, 431 Mich 315, 334 (1988) (question marks and citation omitted). “When the voluntariness of a confession is challenged, the burden is on the people to demonstrate voluntariness by a preponderance of the evidence.” People v Stewart, ___ Mich ___, ___ (2023) (quotation marks and citation omitted).
Where the use of involuntary statements at trial violates a defendant’s constitutional right to due process, the “defendant’s conviction may only stand if the prosecutor can prove that the error was harmless beyond a reasonable doubt[.]” Stewart, ___ Mich at ___. “Reversal is required if the average jury would have found the prosecution’s case significantly less persuasive without the erroneously admitted testimony.” Id. at ___ (quotation marks and citation omitted) (holding defendant was entitled to a new trial because “the use of [involuntary] statements at trial violated defendant’s constitutional rights, and the prosecution ha[d] not proved that their admission at trial was harmless beyond a reasonable doubt”).
In Cipriano, 431 Mich at 334, the Michigan Supreme Court identified the following factors as relevant to determining whether a defendant’s statement was voluntary:8
(1) the age of the accused;
(2) the accused’s lack of education or intelligence level;
(3) the extent of the accused’s previous experience with the police;
(4) the repeated or prolonged nature of the questioning;
(5) the length of detention before the accused gave the statement;
(6) lack of any advice to the accused regarding his or her constitutional rights;
(7) an unnecessary delay in bringing the accused before a magistrate before the accused gave the confession;
(8) whether the accused was injured, intoxicated, drugged, or ill when he or she gave the statement;
(9) whether the accused was deprived of food, sleep, or medical attention;
(10) whether the accused was physically abused; and
(11) whether the accused was threatened with abuse. Cipriano, 431 Mich at 334.
Mental incompetence. A defendant’s mental incompetence alone does not render a defendant’s confession involuntary; for a confession to be involuntary, evidence of police misconduct or coercion must exist. Colorado v Connelly, 479 US 157, 164 (1986). While psychological interrogation tactics may make a suspect’s mental condition more significant, mental illness by itself and apart from its relation to official coercion should never decide the question of voluntariness. Id. On numerous occasions, the United States Supreme Court has referred to the education and IQ of a suspect in finding that he or she was highly susceptible to coercion and that the police overpowered the suspect’s will in obtaining an incriminating statement. See Culombe v Connecticut, 367 US 568, 620 (1961) (involving a defendant with an intelligence quotient of 64 and the mental age of a 9-year-old); Spano v New York, 360 US 315, 316, 321-322 (1959) (involving a foreign-born defendant with a junior high education who was described as “emotionally unstable”); Payne v Arkansas, 356 US 560, 562 n 4 (1958) (involving a 19-year-old with a fifth-grade education who was described as “mentally dull” and “slow to learn”).
Misrepresentation of evidence. “The fact that the police lie to a suspect about the evidence against him or her does not automatically render an otherwise voluntary statement involuntary.” People v Perkins, 314 Mich App 140, 155 (2016), vacated in part on other grounds by People v Perkins, unpublished order of the Court of Appeals, issued February 12, 2016 (Docket Nos. 323454; 323876; 325741) and People v Hyatt, 316 Mich App 368 (2016).9 “Instead, misrepresentation by the police is just one factor to be considered; the focus remains the totality of the circumstances.” Perkins, 314 Mich App at 155-156 (holding that where the totality of the circumstances demonstrated that the defendant’s statement to police was voluntary, he was not entitled to suppression of the statement on the ground that the investigating officer “lied to him about what evidence existed in the case”).
Age of defendant. “[T]he mere fact that defendant was 17 years old and inexperienced in the criminal justice system [did] not mean that he was ‘peculiarly susceptible to an appeal to his conscience’ or ‘unusual[ly] susceptib[le] . . . to a particular form of persuasion’” within the meaning of Rhode Island v Innis, 446 US 291, 302 (1980). People v White, 493 Mich 187, 203 (2013) (third and fourth alterations in the original). The Innis Court concluded “that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” Innis, 446 US at 300-301. “Miranda refers . . . to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 US at 301.
Promise of leniency. “[A] statement induced by a law enforcement official’s promise of leniency is involuntary and inadmissible, if there was a promise of leniency and that promise caused the defendant to confess.” People v Conte, 421 Mich 704, 712 (1984). To determine whether a promise of leniency exists requires an analysis of “whether the defendant reasonably understood the official’s statements to be a promise of leniency.” Id. To determine whether the officer’s promise of leniency caused the defendant to confess requires an analysis of whether the defendant relied on the promise when he or she decided to offer inculpatory evidence and whether, in fact, the promise of leniency prompted the defendant to make the incriminating statements. Id. “While general observations regarding leniency . . . will not render a statement involuntary, express or implied assurances that cooperation will aid the interrogee’s defense or result in a lesser sentence may do so.” Stewart, ___ Mich at ___ (“promises of leniency remain only one factor to be considered within the totality-of-the-circumstances analysis”).
In Stewart, a police officer proposed that they quickly go through paperwork and then proceeded to ask defendant general questions although defendant “was still attending secondary school and living with family,” and “made repeated requests to call his mother[.]” Stewart, ___ Mich at ___. The “defendant’s age and its attendant characteristics [were] relevant” to the Court’s analysis, and conclusion that “defendant’s age made him more susceptible to suggestions from law enforcement and less likely to engage in reasoned decision-making.” Id. at ___ (clarifying that its “decision does not create a bright-line rule that any statement by an 18-year-old to law enforcement is involuntarily given”).
In addition to the Cipriano factors, courts “must also address any other factual circumstances, psychological effects, and coercive tactics employed by the officers that may have contributed to an overbearing of the defendant’s free will.” Stewart, ___ Mich at ___. In this regard, “one such tactic employed by law enforcement was the officers’ repeated and specific references to leniency.” Id. at ___. The Stewart Court stated that police officers “heavily implied” to defendant that “you control your own destiny” and “emphasized that it was defendant’s cooperation that determined . . . a lesser sentence.” Id. at ___ (noting the “transcript reflects that defendant took these statements as an assurance”). “Given that the officers continued to make these implications of leniency, their limited qualifying language was not sufficient to undo the implications’ coercive effect.” Id. at ___ (the impact of the officers’ promise of leniency was compounded by the fact that “the officers also lied to defendant about the extent of the evidence against him” and “the overall tone of the interrogation was combative”). While “the length of the interrogation . . . was not excessively long,” defendant was “advised of his constitutional rights,” did not “allege that he was injured intoxicated, or drugged,” and denied “that he was physically abused” in Stewart, “[t]he totality of the circumstances of defendant’s interrogation—including his age, the timing of the interrogation [during early morning hours with an inference that defendant was sleep deprived], the officers’ references to leniency, the officers’ use of falsehoods, and the officers’ overall tone and use of language—created an environment in which defendant’s free will was overborne and the statements he gave were involuntary.” Stewart, ___ Mich at ___.
4.Determining a Knowing and Intelligent Waiver
“In contrast to the voluntary prong, determining whether a suspect’s waiver was knowing and intelligent requires an inquiry into the suspect’s level of understanding, irrespective of police behavior.” People v Daoud, 462 Mich 621, 636 (2000). “To knowingly waive Miranda[10] 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.” People v Cheatham, 453 Mich 1, 28 (1996). Rather, “Miranda requires that the accused be advised of his rights so that he may make a rational decision, not necessarily the best one or one that would be reached only after long and painstaking deliberation.” Id. (alteration and citation omitted). “Lack of foresight is insufficient to render an otherwise proper waiver invalid.” Id. at 29.
“To establish a valid waiver, the state must present evidence sufficient to demonstrate that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him.” Cheatham, 452 Mich at 29. “The test is not whether the defendant made an intelligent decision in the sense that it was wise or smart to admit his participation in the crime, but whether his decision was made with the full understanding that he need say nothing at all and that he might then consult with a lawyer if he so desired.” Id. (alterations and citation omitted).
The trial court’s factual findings regarding a defendant’s knowing and intelligent waiver of Miranda rights are reviewed for clear error. Daoud, 462 Mich at 629.
5.Waiver Does Not Have to be Explicit
A waiver does not have to be explicit; it can be determined by the surrounding facts and circumstances. North Carolina v Butler, 441 US 369, 375-376 (1979). “[I]n at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id. at 373. However, “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Miranda v Arizona, 384 US 436, 475 (1966).
“[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” Berghuis v Thompkins, 560 US 370, 388-389 (2010). During the three-hour interview in Berghuis, 560 US at 376, 382, the defendant did not invoke his right to remain silent, because he never said “that he wanted to remain silent or that he did not want to talk with the police.” Further, the record demonstrated that the defendant waived his right to remain silent by knowingly and voluntarily making a statement to the police, where: (1) “there [wa]s no contention that [he] did not understand his rights; and from this it follows that he knew what he gave up when he spoke”; (2) his response to a detective’s question regarding “whether [he] prayed to God for forgiveness for shooting the victim [wa]s a ‘course of conduct indicating waiver’ of the right to remain silent”; and (3) “there [wa]s no evidence that [his] statement was coerced.” Id. at 385-387, quoting Butler, 441 US at 373. Additionally, the police were not required to obtain a waiver of the defendant’s right to remain silent before questioning him, because “after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights.” Berghuis, 560 US at 388.
“When a defendant speaks after receiving Miranda warnings, a momentary pause or even a failure to answer a question will not be construed as an affirmative invocation by the defendant of the right to remain silent.” People v McReavy, 436 Mich 197, 222 (1990). “[A] defendant who speaks following Miranda warnings must affirmatively reassert the right to remain silent.” People v Davis, 191 Mich App 29, 35-36 (1991).
“[T]here is a lack of agreement as to the admissibility of statements obtained through [a] ‘two-stage interrogation’ practice, i.e., interviews that occur before Miranda[11] warnings and after Miranda warnings, as discussed in the plurality and Justice Kennedy’s concurring opinions issued in [Missouri v Seibert, 542 US 600 (2004)].” People v Lewinski, ___ Mich App ___, ___ n 7 (2024) (noting “there is no Michigan precedent on this issue”).
7.Reinitiated Communication by Defendant After Invoking Miranda — Right to Counsel
“[T]here is no bright-line rule that, in the absence of rereading the person his Miranda[12] rights a second time when discussions are reinitiated [by a defendant after invoking his or her Miranda rights], the person’s subsequent statements must be suppressed. Rather, the test is whether, under the totality of the circumstances, the person voluntarily, knowingly, and intelligently waived his right to counsel and to remain silent.” People v Clark, 330 Mich App 392, 398 (2019). “The fact that police officers do not again fully advise the defendant of his Miranda rights after he reinitiates communication with them is just one factor to consider under to totality of the circumstances.” Id. at 419, 421 (finding that because the time lapse of a few minutes “between when defendant initially invoked his right to counsel, reinitiated discussion, and then began talking again with the officers,” the officers’ reminder to defendant “that his Miranda rights were recently read to him . . . was adequate under the circumstances”).
8.Cases Involving Valid Waiver
Hearing-impaired defendant. A preponderance of the evidence proved that a deaf-mute defendant knowingly, intelligently, and voluntarily waived her Miranda rights when she made inculpatory statements during interrogation after a detective placed a constitutional rights form within the defendant’s range of vision, read portions of the form aloud while a sign language interpreter signed and mouthed the detective’s words to the defendant, and the defendant signed the form. People v McBride, 480 Mich 1047 (2008); People v McBride, 273 Mich App 238, 240-244 (2006).
Reinitiated communication by defendant after invoking Miranda. Defendant’s waiver was valid where “[t]he time lapse between when defendant initially invoked his right to counsel, reinitated discussions, and then began talking again with the officers was only a few minutes”; “the officers reminded defendant that his Miranda rights were recently read to him, and he continued talking with the officers.” People v Clark, 330 Mich App 392, 421 (2019). “Given the brief time lapse, the reminder was adequate under the circumstances[.]” Id.
Intoxication. A defendant made a voluntary, knowing, and intelligent waiver of his right against self-incrimination, even when he was intoxicated and suicidal at the time of the confession. People v Tierney, 266 Mich App 687, 709-710 (2005). The Tierney Court affirmed the trial court’s analysis of the Cipriano13 factors and emphasized that a defendant’s intoxication was only one of the eleven Cipriano factors. Tierney, 266 Mich App at 709-710. The Court noted that any effect that the defendant’s intoxication may have had on the defendant was significantly outweighed by other factors, including the defendant’s college education, his experience with the criminal justice system, the absence of any threats, and the fact that necessities (e.g., medical care) were not withheld from the defendant during police questioning. Id. at 709. See also People v Leighty, 161 Mich App 565, 571 (1987) (severe intoxication from drugs or alcohol may preclude an effective waiver of Miranda rights, but it is not dispositive; the totality of the circumstances must be examined).
Subsequent interrogation. Notwithstanding the fact that the suspect was not held in continuous custody between his first interrogation (at which he requested counsel and denied involvement in the crime), and his second interrogation 11 days later (at which he acknowledged his right to counsel and implicated himself in the crime), the defendant executed a valid waiver of his right to counsel at the second interrogation. People v Harris, 261 Mich App 44, 55 (2004). Two police officers involved in the defendant’s interrogation refuted the defendant’s claim that he requested counsel at the second interrogation, and the prosecution’s evidence included the defendant’s videotaped acknowledgment of his right to counsel and a signed waiver of that right. Id.
“[N]either Miranda’s[14] right to be given a series of warnings nor Edwards’s[15] right to have counsel present apply absent custodial interrogation[.]”16 People v Elliott, 494 Mich 292, 304 (2013). “If the accused is never subjected to custodial interrogation after he has invoked his right to counsel, Edwards is inapplicable[; i]n other words, according to Edwards, the [Fifth Amendment] right the accused invokes under Miranda is the right to have counsel present during custodial interrogation[, and] . . . [i]n the absence of a post-invocation custodial interrogation, there can be no infringement of that right.” Elliott, 494 Mich at 303, 305 (further holding that because “defendant was not subjected to custodial interrogation by the parole officer” to whom he made incriminating statements, it was unnecessary to “consider whether a parole officer . . . may be considered a law enforcement officer for purposes of Miranda”) (citation omitted).
Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v Arizona, 384 US 436, 444 (1966).“The determination whether a person is considered to be ‘in-custody’ with respect to an interrogation is a two-part inquiry, focusing on the freedom of movement and the environment.” People v Lewinski, ___ Mich App ___, ___ (2024). “The first step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.” Id. at ___ (quotation marks and citation omitted). The second step in determining “whether defendant was ‘in-custody’ for purposes of deciding whether he was subjected to custodial interrogation under Miranda” is “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Id. at ___ (quotation marks and citations omitted).
1.Custody
“Custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” People v Lewinski, ___ Mich App ___, ___ (2024) (cleaned up). Indeed, “not all restraints on an individual’s freedom of movement are tantamount to custody for purposes of deciding whether a person has been subjected to custodial interrogation under Miranda.”17 Lewinski, ___ Mich App at ___ (quotation marks and citation omitted). “[I]n order to determine how a suspect would have gauged his or her freedom of movement, courts must examine all of the circumstances surrounding the interrogation.” Id. at ___ (quotation marks and citation omitted). “The relevant factors to consider include: (1) the location of the questioning, (2) the duration of the questioning, (3) statements made during the interview, (4) the presence or absence of physical restraints during the questioning, and (5) the release of the interviewee at the end of the questioning.” Id. at ___ (quotation marks and citation omitted). “No one circumstance is controlling; rather, a reviewing Court must consider the totality of the circumstances when deciding whether an individual was subjected to custodial interrogation under Miranda.” Id. at ___ (cleaned up).
In Lewinski, “[a]lthough the police questioning occurred in a hospital room, not a police station, and the police did not take defendant to the hospital,” location was a neutral factor “because the detectives were standing in a location that effectively blocked defendant’s exit and defendant was actively being treated in the hospital which placed him in a more compromised and vulnerable state so that he more than likely would not have felt free to leave or terminate the interview.” Id. at ___ (“[T]he interview’s 69-minute duration [was also] a neutral factor.”).
Considering that defendant was never told he was free to leave and that defendant made incriminating statements shortly after the interview started and detectives continued questioning the defendant before giving him Miranda warnings, the statements made during the interview factor “weigh[ed] in favor of finding that defendant would not have felt free to leave or terminate the interview.” Id. at ___. “Regarding the presence or absence of physical restraints during the questioning, generally, the lack of handcuffs weighs against a finding of custody.” Id. at ___ (cleaned up). “However, other forms of restraint may support a finding of custody.” Id. at ___ (finding that “this factor weigh[ed] in favor of a finding that defendant would not have felt free to leave or terminate the interview”). The factor regarding “release of the interviewee at the end of the questioning” weighed “in favor of defendant being in custody” because “defendant was arrested about 27 minutes into questioning and was not released at the end of the interview.” Id. at ___. “Finally, regarding the issue of whether or not a reasonable person would believe he or she was free to leave or terminate the interview,” a police officer’s testimony that he decided the defendant “was not free to leave just two minutes into the interrogation” was “not relevant to the issue of whether a reasonable person in defendant’s situation would believe they were free to leave or terminate the interview.” Id. at ___.
Turning to the second consideration, the Lewinski Court found that, considering the totality of the circumstances, the pre-Miranda interrogation “did not take place in an unduly coercive environment.” Id. at ___ (noting that “there was no time when the questioning . . . could be described as accusatory,” and “defendant was never placed in a police car or taken to a police station during the interrogation”). Accordingly, “defendant was not in custody at the time of the pre-Miranda interrogation, and consequently, defendant’s incriminating statements were not gained in violation of his Miranda rights.” Id. at ___.
“The determination of custody depends on the objective circumstances of the interrogation rather than the subjective views harbored by either the interrogating officers or the person being questioned.” People v Zahn, 234 Mich App 438, 449 (1999).
“Statements made by a defendant to the police during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and intelligently waives the constitutional right against self-incrimination.” People v Lafey, ___ Mich App ___, ___ (2024). “For purposes of Miranda[18], interrogation refers to express questioning or its functional equivalent.” Lafey, ___ Mich App at ___ (quotation marks and citation omitted). “In other words, interrogation refers to express questioning and to any words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response from the subject.” Id. at ___ (cleaned up). “Statements made voluntarily by persons in custody do not fall within the purview of Miranda.” Id. at ___ (quotation marks and citation omitted). In Lafey, the defendant made a “spontaneous, inculpatory statement” after “the police officers had concluded their questioning of him.” Lafey, ___ Mich App at ___ (noting that “defendant made his statement voluntarily and without prompting from the officers” and that the police officer’s “response of ‘What?’ to defendant’s statement . . . did not arise to the level of interrogation”). “Where a statement is spontaneous and only followed with a clarifying question from an officer, it is not given shelter by Miranda.” Lafey, ___ Mich App at ___ (quotation marks and citation omitted).
Interrogation involves questioning or its functional equivalent which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v Innis, 446 US 291, 301 (1980).
3.Questioning a Child
The age of a child subjected to police questioning “properly informs the Miranda[19] custody analysis.” JDB v North Carolina, 564 US 261, 265 (2011). “[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. . . . [C]ourts can account for that reality without doing any damage to the objective nature of the custody analysis.” Id. at 272. Although officers are not required to consider a suspect’s subjective state of mind or other unknowable circumstances, a child’s age is a fact that “yields objective conclusions” that “are self-evident to anyone who was a child once . . . , including any police officer or judge”; thus, “a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action.” Id. at 271-272, 275. Cautioning that “a child’s age will [not] be a determinative, or even a significant, factor in every case,” the Court concluded that “so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.” Id. at 277.
4.Questioning a Motorist
“[A] motorist detained for a routine traffic stop or investigative stop is ordinarily not in custody within the meaning of Miranda.”20 People v Steele, 292 Mich App 308, 317 (2011).
5.Questioning a Prisoner
There is no “categorical rule . . . that the questioning of a prisoner is always custodial [within the meaning of Miranda21] when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison.” Howes v Fields, 565 US 499, 505 (2012). Rather, “[w]hen a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation, . . . includ[ing] the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.” Id. at 514, 516-517. Similarly, “[w]here . . . a parolee is incarcerated for an alleged parole violation, ‘custodial’ means more than just the normal restrictions that exist as a result of the incarceration.” People v Elliott, 494 Mich 292, 305-306 (2013). “[T]he first constitutional step is to determine ‘whether an individual’s freedom of movement was curtailed[.]’ If so, the court should then ask ‘the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.’ Thus, ‘[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda.’” Elliott, 494 Mich at 308, quoting Fields, 565 US at 509.
A break in custody of 14 days ends the presumption of involuntariness established in Edwards v Arizona, 451 US 477 (1981), because that duration “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” Maryland v Shatzer, 559 US 98, 110 (2010). The Court also held that when an individual is interrogated while in prison for an unrelated crime, released back into the general prison population, then questioned again at a later time, the situation constitutes a break in custody for purposes of Miranda. Shatzer, 559 US at 112-114. According to the Court, “[w]ithout minimizing the harsh realities of incarceration, we think lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda.” Id. at 113.
6.Questioning by a Non-Police Actor
Individuals not acting on the government’s behalf may not be required to give Miranda22 warnings before eliciting a statement. See People v Anderson, 209 Mich App 527, 533-534 (1995) (a juvenile corrections officer whose job duties did not require the interrogation of suspects, who did not wear a badge or uniform or carry a gun, and who did not have authority to arrest or detain citizens, was not required to give a defendant Miranda warnings). See also People v Porterfield, 166 Mich App 562, 567 (1988) (a protective services caseworker not charged with enforcement of criminal laws and not acting on behalf of police, is not required to advise an individual of Miranda rights); People v Faulkner, 90 Mich App 520, 525 (1979) (a private investigator is not required to advise individuals of their constitutional rights before eliciting a statement).
7.Custodial Interrogation Existed
•Edwards v Arizona, 451 US 477, 487 (1981) (custodial interrogation existed where the defendant invoked his right to counsel, the police stopped questioning him, the police returned to him the next day and advised him of his Miranda23 rights again, and defendant subsequently made an incriminating statement; the “statement made without having had access to counsel, did not amount to a valid waiver and hence was inadmissible”).
•People v Kelly, 505 Mich 933 (2019) (custodial interrogation existed where the defendant was handcuffed and under restraint when questioned).
•People v Barritt, 325 Mich App 556, 574, 575-576, 582-583, 584 (2018) (custodial interrogation existed and defendant’s Fifth Amendment rights were violated where there totality of the circumstances showed that defendant “was always in the company of at least one armed officer”; “he was told by the police to get into the back of a police car”; his “dog had been forcibly removed from the home by animal-control officers”; “[h]e was not able to drive to the police station in the same car that brought him to the house, despite the fact that the police had told defendant’s driver to drive to the very same police station”; he “did not get to arrange the time of the interview, the place of the interview, or when the interview would conclude”; and “[a]t the end of the interview defendant was handcuffed and placed in another police vehicle.” The “mode of transportation implie[d] a physical restraint regardless of whether . . . defendant voluntarily accepted the ride.” Further, whether defendant was told he was free to leave was relevant, and the fact that he was not told until the end of the interview (and after he stated he needed a lawyer) that he was not under arrest and could finish anytime, weighed in favor of finding custody. The accusatory nature of the questioning also weighed in favor of finding custody because it “would lead a reasonable person to perceive that they were not free to leave[.]”).24
8.Custodial Interrogation Did Not Exist
•People v Lewinski, ___ Mich App ___, ___ (2024) (There was no custodial interrogation where the defendant made incriminating statements from his hospital bed in response to nonaccusatory questions from detectives; although “a reasonable individual in the circumstances surrounding defendant’s interrogation would not have felt free to leave or terminate the interview,” “defendant was not in custody prior to the time he received the Miranda[25] warnings” because the interrogation “did not take place in an unduly coercive environment.”).
•People v Lafey, ___ Mich App ___, ___ (2024) (There was no custodial interrogation where the defendant made a spontaneous, inculpatory statement during a pat-down after the police officers concluded their interrogation and were preparing to transport defendant to the police cruiser; “the record [did] not support the assertion that the pat-down search was conducted to elicit an incriminating response from defendant” and “was conducted immediately before defendant was removed from the house and placed in a police cruiser.” “[The pat-down] was performed in the course of arresting defendant and was aimed at securing defendant for transport and to ensure officer safety.”).
•Howes v Fields, 565 US 499, 514, 516-517 (2012) (there was no custodial interrogation where the respondent, a jail inmate, was escorted to a conference room and questioned by officers regarding allegations that he had committed an unrelated offense prior to his incarceration; “[t]aking into account all of the circumstances of the questioning,” including that the respondent was not physically restrained or threatened, that he was interviewed under conditions that were not uncomfortable, and, “especially . . . that [he] was told that he was free to end the questioning and to return to his cell, . . . respondent was not in custody within the meaning of Miranda26”).27
•People v Elliott, 494 Mich 292, 297-299, 308-313 (2013) (Defendant was not subjected to custodial interrogation when his first interrogation about a robbery was discontinued after he requested an attorney, then subsequently met with a different parole officer at the jail who served him with an amended notice of parole violation and during the meeting, confessed to his involvement in the robbery. “[D]efendant was not subjected to the type of coercive pressure against which Miranda was designed to guard” because “the meeting . . . took place in the jail library, it was of short duration (15 to 25 minutes), defendant was not physically restrained, . . . he was escorted to the library by a deputy, not by the parole officer,” he “was not free to leave the jail library by himself,” and “much like the prisoner in Fields, a ‘reasonable person’ in defendant’s ‘position,’ i.e., a parolee, would be aware that a parole officer is acting independently of the police who placed him in custody and has no control over the jail, its staff, or the individuals incarcerated there.” Additionally, “there [was] no evidence of coercion or any other manner of psychological intimidation[, and] . . . defendant . . . did not even once indicate that he did not want to talk to the parole officer.”).
• People v White, 493 Mich 187, 191-192, 195, 198-200, 202, 204-206 (2013) (Where defendant asserted his right to remain silent after an officer provided him with Miranda warnings, the officer’s statement to the 17-year-old defendant that he “‘hope[d] that the gun [was] in a place where nobody [could] get a hold of it and nobody else [could] get hurt by it’” did not constitute either “‘express questioning or its functional equivalent’” under Innis,28 and the trial court therefore erred in suppressing the defendant’s subsequent incriminating statements. “The officer’s comment . . . was not a question because it did not ask for an answer or invite a response[, but instead] was a mere expression of hope and concern[, and] . . . the officer’s addition of the words ‘okay’ and ‘all right’ at the end of his comment did not transform a non-question into a question” where he had “repeatedly used [these] words . . . in a manner that failed to garner any response from defendant.” “Furthermore, immediately before the officer made the statement at issue, he said, ‘I’m not asking you questions, I’m just telling you.’ Although this [was] certainly not dispositive of whether what follow[ed] constituted a ‘question,’ . . . [t]he very utterance itself made it less likely either that the officer would have reasonably expected defendant to answer with an incriminating response or that defendant would have proffered an incriminating response.” The officer’s comment about the location of the gun was a “direct statement[] to the defendant,” but because there was “nothing in the record to suggest that the officer was aware that defendant was ‘peculiarly susceptible to an appeal to his conscience’ concerning the safety of others,” and because “the officer’s remark [was not] ‘particularly “evocative,”’” the “defendant was not subjected to the ‘functional equivalent’ of express questioning[.]”29).
• People v Cortez (On Remand), 299 Mich App 679, 685-688, 699-701 (2013) (the defendant prisoner who, after being handcuffed and confined in an office with a closed door, was questioned about a weapon that was found in his cell was not in custody for purposes of Miranda; although “defendant was not told that he was free to end the questioning and return to his cell, . . . other coercive aspects of the interrogation that existed in Fields [were] absent” where the interview lasted only 15 minutes, there was no evidence that the defendant’s sleep schedule was interrupted or that he was made uncomfortable, the questioning corrections officer did not threaten him, and he was questioned about gang activity inside the prison away from the general prison population).
•People v Jones, 301 Mich App 566, 580 (2013) (“defendant was not in custody for purposes of Miranda during [a] traffic stop or while she was waiting in the police cruiser during the search of her vehicle” where the detaining officer “asked defendant and her children to sit in his police cruiser for their own safety;” because “defendant was not handcuffed and was informed that she was not under arrest, . . . under the totality of the circumstances, a reasonable person in defendant’s position would have believed she was free to leave”).
•People v Steele, 292 Mich App 308, 319 (2011) (“[g]iven the circumstances that justified the Terry[30] stop, [the police officer] was permitted to temporarily detain defendant and make a reasonable inquiry into possible criminal activity”; the police officer’s “brief questioning was within the scope of the stop and confirmed the officer’s suspicions concerning the presence of a controlled substance without subjecting defendant to a custodial interrogation”).
•People v Vaughn, 291 Mich App 183, 186-190 (2010), vacated in part on other grounds 491 Mich 642 (2012)31 (no custodial interrogation where plainclothes police officers entered the defendant’s home with the defendant’s mother’s permission, did not draw their weapons, requested the defendant to come from the basement to the main floor, did not handcuff him or otherwise restrict his movement, and questioned him in his mother’s presence).
F.Motion to Suppress Confession (Walker Hearing)
A defendant may move to suppress their confession at a hearing typically called a Walker hearing. People v Walker (On Rehearing), 374 Mich 331, 338 (1965). Hearings on the admissibility of confessions must be conducted outside the presence of the jury. MRE 104(c)(1).32 A defendant in a criminal case does not become subject to cross-examination on other issues in the case by testifying. MRE 104(d). The rules of evidence do not apply to Walker hearings, except those on privileges. MRE 104(a); People v Richardson, 204 Mich App 71, 80 (1994).
The prosecution bears the burden of showing the admissibility of a confession. Brown v Illinois, 422 US 590, 604 (1975).
1.Common Challenges to Confessions
Illegal arrest/unlawful detention. There must be a warrant or probable cause to arrest, or the detention is illegal and “any evidence obtained as a result of that unlawful detention or any statement made [by an individual] while unlawfully detained must be suppressed.” People v Lewis, 160 Mich App 20, 25 (1987). See also People v Dowdy, 211 Mich App 562, 569 (1995), where an initial warrantless entry was unconstitutional but a defendant’s statement was admissible because it was made after police had probable cause to arrest the defendant. To determine whether the illegal arrest caused the confession, the court should consider the time between the illegal arrest and confession, whether the official misconduct was flagrant, whether there were intervening circumstances, and any events that occurred before the arrest. People v Mallory, 421 Mich 229, 243 n 8 (1984).
Where the defendant comes forward with proof that his or her confession was involuntary and was obtained as a result of a statutorily unlawful detention, the prosecution has the burden of proving that the confession was voluntary and admissible. People v Jordan, 149 Mich App 568, 577 (1986). See Section 3.14(D)(3) for more information on voluntariness.
Unreasonable prearraignment delay. Generally, the court should make a probable cause determination within 48 hours of a defendant’s arrest. See Riverside v McLaughlin, 500 US 44, 56 (1991). A confession obtained during an unreasonable prearraignment delay may be inadmissible. Mallory, 421 Mich at 243; People v White, 392 Mich 404, 424 (1974). “[W]here the delay has been employed as a tool to extract the statement, the exclusionary rule will be imposed even if the statement was given voluntarily.” Jordan, 149 Mich App at 577. Although the “48 hour” rule established in Riverside, 500 US at 44, forms a presumption of unreasonableness, the delay is only one factor to be considered in determining whether the statement was involuntary. People v Manning, 243 Mich App 615, 642-643 (2000). “The proper analysis is voluntariness under the Cipriano[33] factors.” Id. at 643. See Section 3.14(D)(3) for more information on voluntariness.
G.Scope/Applicability of Exclusionary Rule
Miranda warnings are constitutionally required and apply to the admissibility of statements made during custodial interrogations in both federal and state courts. Dickerson v United States, 530 US 428, 432, 442 (2000). Confessions obtained in violation of a defendant’s Fifth Amendment privilege against compulsory self-incrimination are not admissible. Miranda v Arizona, 384 US 436, 474-477 (1966); People v Hill, 429 Mich 382, 394-395 (1987). If a defendant asserts his or her right to counsel, the interrogation must cease until counsel is present, or, after the lapse of a significant period of time, the defendant knowingly and intelligently waives his or her right to counsel. People v Parker, 84 Mich App 447, 457 (1978).
“Application of the exclusionary rule to a constitutional violation is a question of law that is reviewed de novo.” People v Frazier, 478 Mich 231, 240 (2007).
1.Testimonial vs. Physical Evidence
The Miranda rule bars only testimonial, not physical evidence.34 United States v Patane, 542 US 630, 636 (2004). Physical (nontestimonial) evidence obtained as a direct result of unwarned but voluntary statements given in violation of Miranda is not covered by the exclusionary rule. Patane, 542 US at 637. See People v Campbell, 329 Mich App 185, 204-205 (2019), where the trial court erred by suppressing evidence at trial when a police officer had failed to give the defendant Miranda warnings before conducting additional questioning and the court did not find that the defendant’s admission was involuntary. In Campbell, a police officer asked the defendant if he had any weapons inside the vehicle following a traffic stop. Id. at 190. Defendant admitted he had a firearm, and upon additional questioning by the officer, that he did not have a CPL. Id. at 190-191. Defendant was then advised “that he would be arrested for having a gun in his vehicle without being licensed to carry a concealed weapon.” Id. at 203 (defendant “was undoubtedly in custody at that point as no reasonable person could have believed he or she was free to leave”). Subsequently, “without advising [defendant] of his rights as required by Miranda,” the officer asked defendant “if he had any other weapons in the vehicle, prompting [defendant] to disclose the location of two additional loaded guns.” Campbell, 329 Mich App at 203. “[T]he trial court correctly ruled that [defendant’s] statement regarding the second and third guns was inadmissible.” Id. However, “application of the exclusionary rule to evidence obtained as a result of a Miranda violation is not a foregone conclusion because a violation of Miranda is not, in and of itself, a violation of the Constitution.” Campbell, 329 Mich App at 204-205 (the court “erred by suppressing the second and third guns on the basis of a Miranda violation”).35
2.Public Safety Exception
The Miranda rule does not apply “in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.” New York v Quarles, 467 US 649, 656 (1984); People v Attebury, 463 Mich 662, 670 (2001). To excuse the Miranda warnings, the circumstances must present an immediate threat to public or police safety and the questions posed to the accused must be objectively and reasonably necessary to protect the public or the police from an immediate danger. Quarles, 467 US at 655-658; Attebury, 463 Mich at 664, 670-671, 674 (officers executing an arrest warrant for assault with a dangerous weapon were justified in questioning the defendant about the location of his gun before giving him Miranda warnings, where the questioning was “directly related to an objectively reasonable need to secure protection from the possibility of immediate danger associated with the gun”).
In the absence of police misconduct, the exclusionary rule does not apply to prohibit the admission of evidence obtained as a result of a defendant’s confession even when the defendant’s confession was obtained in violation of the defendant’s Sixth Amendment right to counsel and is inadmissible in the prosecution’s case-in-chief. See People v Frazier, 478 Mich 231, 250 (2007). The exclusionary rule does not apply because excluding a confession (and evidence discovered as a result of the confession) that did not result from police misconduct would not further the purpose of the exclusionary rule—to deter future police misconduct. Id. at 252.
After consulting with an attorney, to whom defendant admitted being present for but denied any advance knowledge or involvement in a robbery and double-homicide, defendant insisted on talking to police following his arrest and arraignment. Frazier, 478 Mich at 236. Based on defendant’s assertion of non-involvement, “defense counsel advised defendant that one option would be to talk to the police and tell the truth.” Id. Defense counsel was present when defendant was given his Miranda36 warnings, but counsel did not remain for the interrogation “because he assumed that he could not be present during questioning.” Id. Despite previously informing defense counsel that he did not have any advance knowledge of the robbery and murders, defendant admitted during the interrogation “that he knew [the perpetrator] had been armed and had intended to rob the victims.” Id. at 236-237. Defendant further admitted that the perpetrator “paid him with two $50 bills after the murders,” “that two street sweepers gave him a ride home after the murders and he asked them to change a $50 bill.” Id. at 237. “The police later located the street sweepers, who testified that defendant approached them for a ride . . . and asked if they had change for a $50 bill.” Id. The Frazier Court concluded the exclusionary rule did not apply to the testimony of the street sweepers because “defendant’s confession did not result from police misconduct,” and “the purpose of the exclusionary rule [was] in no way served by excluding the street sweepers’ testimony.” Id. at 235. The Frazier Court further commented that even if the defendant’s confession did result from police misconduct, the exclusionary rule did not apply because any connection between the misconduct involved in obtaining the defendant’s confession, and the witness’s testimony obtained as a result, was sufficiently attenuated to dissipate any taint. Id. at 253. “Under the attenuation exception to the exclusionary rule, exclusion is improper when the connection between the illegality and the discovery of the challenged evidence has become so attenuated as to dissipate the taint[.] Attenuation can occur when the causal connection is remote or when the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Id. (quotation marks and citations omitted).
4.Evidence of Defendant’s Silence Generally Inadmissible
Generally, a defendant’s silence with the police after arrest and having received Miranda warnings is inadmissible at trial. People v Boyd, 470 Mich 363, 374-375 (2004).37 See also People v Clary, 494 Mich 260, 271-272 (2013) (holding that the prosecutor improperly referred to the defendant’s failure, “after he was arrested and arraigned, [to tell] the police that he did not shoot the complainant”). However, an arrested defendant’s silence after Miranda may be used against the defendant if he or she “testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Doyle v Ohio, 426 US 610, 619 n 11 (1976). See also Boyd, 470 Mich at 374-375.
“[A] defendant’s nonverbal conduct [such as sitting with his head in his hands, looking down] cannot be characterized as ‘silence’ that is inadmissible per se under the Michigan Constitution.” People v McReavy, 436 Mich 197, 205, 222 (1990).
“‘[T]he Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence’ at his first trial. Jenkins[ v Anderson, 447 US 231, 235 (1980)], citing Raffel v United States, [271 US 494 (1926)].” Clary, 494 Mich at 266, 272, 280 (noting that “even though this [type of] silence is . . . post-Miranda silence, . . . Raffel has not been overruled by . . . any . . . United States Supreme Court decision,” and holding that where the defendant did not testify at his first trial, which ended in a mistrial, he was not “improperly impeached with his silence when the prosecutor [at the retrial] made repeated references to his failure to testify at his first trial”).38
Similarly, “it [is] not ‘error to require the defendant, . . . offering himself as a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial.’” Clary, 494 Mich at 266, quoting Raffel, 271 US at 499 (alteration added) (noting that the defendant’s cross-examination must be relevant and within the scope of cross-examination rules). At the defendant’s first trial in Clary, 494 Mich at 263, the complainant testified that the defendant shot him, and the defendant did not testify. The first trial resulted in a mistrial due to a hung jury. Id. At the defendant’s second trial, the complainant again testified that the defendant shot him, and the defendant took the stand and testified that he did not shoot the complainant. Id. at 263-264. The prosecutor impeached the defendant by asking him why he had not provided that testimony at the first trial. Id. at 264. The Michigan Supreme Court held that where a “defendant’s silence [is] clearly used for impeachment purposes . . . it is admissible under Raffel.” Clary, 494 Mich at 270-271. However, the Court cautioned that just because the impeachment is constitutionally sound, does not mean that it is automatically admissible under the Michigan Rules of Evidence. Id. at n 8. Rather, “the admission of a defendant’s prior silence, as with any other piece of evidence, must comply with the rules of evidence, including MRE 401 (defining relevant evidence), MRE 402 (providing that relevant evidence is generally admissible), and MRE 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice).” Clary, 494 Mich at 271 n 8.
A defendant is required to testify to preserve for review a challenge to the trial court’s ruling in limine allowing the prosecution to admit evidence of the defendant’s exercise of the Miranda right to remain silent. Boyd, 470 Mich at 365. “Whether [a] defendant was improperly impeached with his silence is a question of law that [appellate courts] review de novo.” Clary, 494 Mich at 264.
Prearrest silence. “The issue of prearrest silence is one of relevance,” and a “defendant’s failure to respond to an accusation is not probative evidence of the truth of the accusation.” People v Hackett, 460 Mich 202, 214-215 (1999). Tacit admissions are inadmissible “because the inference of relevancy rests solely on the defendant’s failure to deny.” Id. at 213 (quotation marks and citation omitted). However, “a defendant’s prearrest silence is admissible for impeachment purposes.” Id.