People v. Cetlinski

435 Mich. 742 (1990)

460 N.W.2d 534

PEOPLE v. CETLINSKI

Docket No. 81176, (Calendar No. 11).

Supreme Court of Michigan.

Argued March 9, 1988.

Decided September 11, 1990.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Nathan T. Fairchild, Prosecuting Attorney, and Jonathan L. Poer, Assistant Prosecuting Attorney, for the people.

John R. Minock for the defendant.

AFTER REMAND

BOYLE, J.

The issue raised in this case is whether People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), precludes cross-examination regarding a prior statement, including omissions, to a police officer.[1]

In People v Cetlinski[2] the Court of Appeals held on initial appeal that the Fifth Amendment precluded asking the defendant during cross-examination why he had not told investigating officers, in the course of prearrest voluntary conversations with them regarding the fire, that he had had a conversation with his waitress and that the waitress *745 had suggested the idea of burning Cetlinski's business. The court reversed the defendant's conviction. After our decision in People v Collier, 426 Mich 23; 393 NW2d 346 (1986), we remanded the case to the Court of Appeals for reconsideration in light of that decision.[3] On remand, the Court of Appeals adhered to its previous position, again concluding that Bobo required reversal and opining that Collier was inapplicable.[4]

Despite the fact that over the years the issue whether Bobo correctly construes the requirement of the Fifth Amendment and if not, whether the Michigan Constitution requires a higher standard has spawned a degree of conflict and confusion in the Court of Appeals,[5] and despite the fact that the precise issue before us has produced a conflict in the Court of Appeals with regard to whether People v Collier or Bobo applies to prior inconsistent statements,[6] Justice LEVIN asserts it is not necessary in this case to reach the Fifth Amendment issue or to address the due process requirements of the Fourteenth Amendment.

In Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980),[7] the United States Supreme Court held that the use of prearrest *746 silence for impeachment purposes did not violate the Fifth Amendment. Moreover, regardless of whether this case involved a situation in which the defendant's silence was used to impeach or one where the defendant made statements to the police, omitting some material facts, the critical events took place prearrest and pre-Miranda[8] and thus there could be no due process claim that the state unfairly used defendant's silence or omission against him at trial in violation of the implicit assurance in Miranda that silence will not be penalized. Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).[9]

We hold that the use for impeachment purposes of a defendant's prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant's *747 constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. Indeed, long before Jenkins v Anderson, the United States Supreme Court had held the Fifth Amendment was not violated by impeachment of a testifying defendant with voluntarily given prior inconsistent statements. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). The use of a defendant's prearrest, pre-Miranda "statements" for impeachment purposes is one of relevancy, an evidentiary matter.[10] The threshold inquiry is whether this evidence makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. See Collier, supra, p 36.

This analysis is consistent with the United States Supreme Court's ruling in Jenkins. There the Court emphasized that

[i]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.... Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence, § 1042, p 1056 (Chadbourn rev 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence [or statements, including omissions] is so inconsistent with present statements that impeachment by reference to such silence [or statements] is probative [of defendant's credibility]. [Id., pp 238-239.]

The statement of a party opponent is defined as *748 an oral or written assertion or nonverbal conduct, MRE 801(d)(2). For impeachment purposes, the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact.[11] Thus, as an evidentiary matter, omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute "silence."[12] Rather, they are "prior inconsistent statements," and can be used to impeach testimony at trial in which the witness admitted the fact's existence. As the Jenkins Court noted, the "[u]se of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts." Id., p 238.[13]

*749 As stated above, when an individual has not opted to remain silent, but has made affirmative responses to questions about the same subject matter testified to at trial, omissions from the statements do not constitute silence. The omission is nonverbal conduct that is to be considered an assertion of the nonexistence of the fact testified to at trial if a rational juror could draw an inference of inconsistency. To be sure, the witness may explain the omission by a desire not to implicate himself or because of a lapse of memory. Such explanations, however, do not remove the relevance of the inconsistency.

On this record, however, the majority is persuaded that evidentiary error, if any, was not prejudicial to the defendant. Accordingly, we reverse the decision of the Court of Appeals and reinstate the defendant's conviction.

I

On December 11, 1983, a fire destroyed a bar that the defendant owned and managed adjacent to the motel in which he and a woman companion lived. After almost six months of investigation, the defendant was charged with burning real property and burning insured property.

At trial the expert fire investigator's testimony revealed that the fire had been set intentionally by spreading kerosene throughout the bar. In addition, having found the bar locked at the time of the fire, the investigator concluded the fire was set by someone with a key to the bar. Only five people had keys to the bar, the defendant, his live-in girl friend and business partner, the bartender on duty that night, a friend who had borrowed defendant's car, and a waitress.

The waitress testified for the prosecution that *750 about three months prior to the actual fire, the defendant and she had discussed burning down the bar, the details of how he wanted the fire to be set, and how defendant wanted the scene to appear to investigators. She also testified that defendant asked her if she knew anyone that would burn the bar and that he could pay $500 for the fire to be set after he received the insurance money. She stated that she told the defendant she would talk to her brother and that when she approached her brother about this he told her to stay out of it and to tell the defendant that it cost $5,000, more than defendant, wished to pay. When she relayed the message to defendant, she said he told her to forget it.[14]

When defendant Cetlinski took the stand, in exculpation on direct examination, he stated while looking at the jury that he had discussed burning the bar with the waitress "as a joke." Further, he stated that it was she who first brought up the idea, that it was her idea to check on what the cost would be, and that after about a week she told defendant her brother said he knew someone who would burn the bar if the defendant wanted it done.[15] Although stating he only had joked with the waitress about burning the bar, the defendant testified that he later discussed the conversation with his girl friend and business partner, and that he agreed with her that it would be wrong. He then stated that he told his girl friend that "[W]e're going to go talk to [her] and tell her we don't want it burned. I told her [the waitress] two *751 or three days in a row I don't want it burned.... I says, that's it."

This testimony served not only to rebut the waitress' testimony, but to suggest that she committed the arson and that defendant himself had nothing to do with the burning of the bar. Other proofs showed that she was one of four people who had keys to the bar and that she was present at the time of the fire.

The defendant also described being awakened by the police at his motel room next to the bar on the night of the fire, and stated he answered what the Court of Appeals characterized as "general investigation questions" at that time, as well as at various times during the course of the investigation.[16] It is undisputed that defendant gave generally exculpatory statements to the police during this period of time.

During cross-examination, the defendant testified that after the waitress suggested she knew someone who could burn the bar and that it could be made to look like a robbery, he had had a second conversation with her about a week after the first one, and it was at that time that she talked about price. Then, after his testimony established the fact that after the fire the bar looked exactly as the waitress had testified that she and the defendant had discussed it should look, the prosecutor asked the following question:

Q. Mr. Cetlinski, after the fire when you saw these things out there, why didn't you tell the police about this conversation [the waitress] had had with you?

A. Because it was just ...

Defense counsel objected and, after the jury was *752 removed, moved for a mistrial on the basis that the prosecutor's question infringed upon defendant's constitutional right to refrain from incriminating himself.

In response, the prosecutor argued that the defendant took the stand, testified, gave numerous voluntary statements to the police officers concerning the fire and its possible origin, and, thus, that the state had the right to inquire why defendant never told police about the conversation with the waitress. The trial judge recessed until the following morning and instructed the attorneys to research the law and that he would make a ruling at that time. The following day the court determined that on the basis of the fact that defendant talked freely to the police there was no issue of silence in the case and denied defense counsel's motion for mistrial.[17]

The prosecutor was permitted to resume questioning:

Q. Mr. Cetlinski, during the course of the investigation of this fire at your bar, you talked to the police officers a number of times; isn't that correct?

A. Yes.

Q. Different officers at different times?

A. Yes.

Q. During any of the course [sic] of those conversations with those officers, did you ever mention to them this conversation you had with [the waitress]?

A. No.

Q. You didn't tell them about that at all?

A. No.

Q. Why didn't you tell them about that at all?

*753 A. I didn't I forgot about it.

The prosecutor never again raised the issue with the defendant or any other witness, or made reference during closing argument to defendant's failure to tell police of the conversation with his employee.[18] Defense counsel argued during closing argument that the prosecutor's question regarding the defendant's failure to tell police about the conversation was unfair because there was no claim that defendant failed to answer all of the questions during the investigation or that he ever lied to anyone. Further, defense counsel noted that even if the waitress' version of the conversation was correct "she had all kind [sic] of motivation [to lie] including her fight with [the defendant's girl friend's] son...."

At the conclusion of the four-day trial, the defendant was convicted by a jury of burning insured property, MCL 750.75; MSA 28.270. On March 7, 1985, the defendant was sentenced to five years probation, with the first year to be served in the Lenawee County Jail.

On initial appeal, the Court of Appeals held that the cross-examination by the prosecutor regarding the defendant's "pre-arrest" failure to tell the investigating officer, "at the scene" "immediately after he and [his companion] were awakened," about his prior conversation violated "defendant's constitutional right against self-incrimination" under the rule of Bobo.[19] Although noting "Bobo had *754 been appropriately limited and defined in recent decisions of this court ... in the light of subsequent decisions of the United States Supreme Court," the panel concluded nonetheless that Bobo required reversal.[20]

After this Court held in Collier that impeachment with "prearrest silence" was not constitutionally precluded, Cetlinski was remanded to the Court of Appeals. On remand, the Court of Appeals again reversed on the basis of Bobo. It distinguished Collier on the ground that Collier was cross-examined regarding his failure to report to the police, prior to any contact with the police, a crime of which he had allegedly been the victim. The panel interpreted Collier only as limiting the Bobo holding

"to those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers. Here, the prosecutor impeached defendant regarding his failure to report a robbery to the police. There was no questioning or mention of defendant's silence at or after his contact with the police." [Citing Collier, supra, p 31. Emphasis added.]

Therefore, because "defendant [Cetlinski] was in contact with the police, and the police were questioning *755 him during their investigation," the panel concluded Collier did not require a different result in this case.

Thus, the Court of Appeals, post-Collier, erroneously held that Bobo prevents impeachment of a testifying defendant with a prior inconsistent statement made voluntarily to the police prior to arrest and during general investigatory questioning.

II

The decision in People v Cetlinski is evidence that this Court must respond to the issues the Court of Appeals has identified and the parties have briefed and argued, and speak to an issue which has been the subject of a sixteen-year effort by the trial and appellate judges of this state: to understand and apply this Court's pronouncements in Bobo.

Understanding and analysis of the Bobo issue requires that we initially explain the facts, holding, and dicta of Bobo, and that we then acknowledge federal authority which casts doubt on the Fifth Amendment rationale of that opinion. The Court in People v Bobo, supra, pp 359-361, opined that the Fifth Amendment of the United States Constitution precluded any reference to a defendant's silence under any circumstances during a trial:[21]

We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. "Nonutterances" are not statements. The fact *756 that a witness did not make a statement may be shown only to contradict his assertion that he did. * * * What concerned the parties and what prompted our grant of leave was the propriety of using the fact of defendant's silence either as evidence of guilt or for the purpose of impeachment. Whether his [defendant's] silence was prior to or at the time of arrest makes little difference the defendant's Fifth Amendment right to remain silent is constant. * * * It is unimportant whether the accuser be a police officer or not. Manifestly whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the Fifth Amendment guarantees that his silence may not be used against him.

Although the factual context of the holding in Bobo was the prosecutor's use of the defendant's prearrest silence during contact with a police officer to impeach the defendant's exculpatory testimony at trial, the Court of Appeals subsequently applied the rationale of Bobo to both pre- and postarrest silence, to substantive and impeachment use of "silence," and to contact with police officers or citizens.[22]

This Court's first consideration of the question whether the federal or the state constitution governs the permissible use of a criminal defendant's silence came thirteen years after Bobo and after a substantial body of federal precedent had construed the Fifth Amendment.[23]People v Collier, *757 supra. In People v Collier, we held that neither the Fifth Amendment nor the Michigan Constitution precluded the use of prearrest silence for impeachment purposes.

The Court recognized that the United States Supreme Court had held that the Fifth Amendment did not preclude cross-examination of a testifying defendant with prearrest silence, Jenkins v Anderson, supra, and declined to find a violation of either due process or self-incrimination protection under the Michigan Constitution:

For us to find that this case invokes the Michigan Constitution would require us to differ with the Jenkins majority's analysis in a prearrest silence impeachment situation involving a factual setting less favorable to the defendant than that in Jenkins. Not only is there no federal Fifth Amendment precedent for such a finding, we are also aware of no other state that has taken such a step in the interpretation of its own self-incrimination provision. We have been offered no satisfactory arguments why we should be the first to use our own constitution to so enlarge upon existing Fifth Amendment jurisprudence. * * * We conclude that to the extent Bobo is viable it is confined to impeachment for and comment on silence at the time of arrest in the face of accusation. [Collier, supra, pp 38-39. Emphasis added.]

In Collier, we concluded that the issue of prearrest silence is one of relevancy and that the Court of Appeals had erroneously construed Bobo. However, while our holding in Collier limited Bobo to impeachment for and comment on silence at the time of arrest in the face of accusation, this Court did not overrule Bobo, but rather found Bobo inapplicable on the facts. Thus, a continuing question exists with regard to whether Bobo is to be *758 understood and applied consistent with intervening developments in Fifth and Fourteenth Amendment jurisprudence.[24] Indeed, confusion regarding this question may actually have increased since Collier. Prior to Collier, a substantial number of panels of the Court of Appeals had recognized a distinction between the use of silence for impeachment and impeachment with prior prearrest statements inconsistent with trial testimony, and held that Bobo was inapplicable to prearrest statements.[25] The Court of Appeals panel in the case at bar characterized the prosecutor's reference to defendant's prior pretrial statements, including omissions, as Bobo "silence" and thus is convincing contemporary evidence of the need for further clarification of this area of the law.

III

People v Cetlinski is the only case before us in which this Court has asked the Court of Appeals to redetermine the admissibility of a defendant's statements, including omissions, in light of the limitation of Bobo set forth in People v Collier.[26] The Court of Appeals reversed the defendant's conviction on the basis of its finding that the use at trial of the defendant's prearrest, pre-Miranda "silence" for impeachment purposes was improper under the rule of Bobo.[27]

*759 At the outset, it must be recognized that the Court of Appeals erred in characterizing and analyzing the issue under a constitutional approach. As stated above, there was no constitutional error. The issue involved is cross-examination designed to test the veracity of in-court assertions by comparison with out-of-court statements, including omissions, and is properly analyzed under an evidentiary approach only. Because the broad Bobo rationale arguably supports the Court of Appeals mischaracterization of the question, we again observe, as we did in Collier, supra, that, in light of both pre- and post-Bobo decisions of the United States Supreme Court, it is clear that the Fifth Amendment rationale no longer supports the Bobo rationale. Thus, no error of federal constitutional law occurred. Because the Court of Appeals finding of error under Bobo is sustainable only if the Michigan Constitution requires a higher standard, we also address that issue.[28]

Consistent with our rationale in Collier, we conclude that an evidentiary approach to the use of a defendant's prearrest, pre-Miranda statements, including omissions, will adequately protect the policy interest in foreclosing the factfinder from unfair inferences of guilt. We therefore construe Bobo as being coextensive with the Fifth Amendment of the United States Constitution and the due process analysis of Doyle v Ohio, 426 US *760 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).[29] The use of a defendant's silence during contact with the police that does not occur "at the time of arrest in the face of accusation," Collier, p 39, for impeachment purposes does not violate the Fifth Amendment or the Michigan Constitution.[30]

People v Collier adopted the evidentiary rule that nonverbal conduct by a defendant, a failure to come forward, is relevant and probative for impeachment purposes when the court determines that it would have been "natural" for the person to have come forward with the exculpatory information under the circumstances.[31] Because a defendant has no duty to come forward, the Court observed that his failure to do so was so ambiguous that it did not in and of itself allow a trial *761 judge to conclude that it amounted to an assertion of the nonexistence of the fact testified to. Thus, where the prosecutor's theory of impeachment is that the defendant is not telling the truth because he did not come forward and offer what he now testifies to, we held that a trial court properly permits impeachment if it would have been natural and expected for the defendant to come forward with the story he relates during trial.[32] In doing so, we necessarily concluded that the mere failure to come forward did not permit a rational juror to draw an inference as to credibility. We also necessarily recognized that nonverbal conduct, the failure to come forward, could be conduct inconsistent with trial testimony.

The issue in this case concerns the permissibility of cross-examination about defendant's statements, including omissions, in light of the fact that the defendant voluntarily gave those statements to the police during a six-month investigation. A majority of the justices are persuaded that the record is insufficient to permit us to determine whether there was evidentiary error[33] because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier. Therefore, we *762 might remand for development of an evidentiary record were we not also persuaded that error, if any, was not prejudicial to the defendant.[34] The jury had before it both the waitress' and Cetlinski's version of their conversations about burning Cetlinski's business. The challenged questioning by the prosecution played a very small role in the defendant's trial, and the other evidence presented at trial was more than sufficient to allow the jury to find Cetlinski guilty beyond a reasonable doubt. Furthermore, it was only the defense counsel who raised the issue of the defendant's failure to inform the police of these conversations in closing argument. Thus, we are persuaded error, if any, did not prejudice Cetlinski's defense or affect the outcome in this case. Therefore, we reverse the judgment of the Court of Appeals and reinstate the defendant's conviction.

CONCLUSION

The Court of Appeals erred in concluding that the Fifth Amendment precluded the cross-examination *763 of the defendant and, on the basis of that conclusion, in reversing the defendant's conviction. The prosecutor did not ask the jury to infer guilt from the defendant's silence.[35] Thus, the prosecutor's cross-examination did not violate this defendant's right not to incriminate himself as guaranteed under the Fifth Amendment. Construing Bobo's constitutional foundation as coextensive with federal law, the use at trial of a defendant's prearrest, pre-Miranda statement for impeachment purposes was permissible under the federal and Michigan Constitutions.

Finally, although the defendant objected to the impeachment use of his prearrest, pre-Miranda statements on constitutional ground, but not on an evidentiary basis, error, if any, was not prejudicial to the defendant. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the defendant's conviction.

RILEY, C.J., and BRICKLEY and GRIFFIN, JJ., concurred with BOYLE, J.

LEVIN, J. (concurring in part and dissenting in part).

Edward Cetlinski was convicted of arson.[1] The issue presented concerns the impeachment[2]*764 use of his failure during investigative interviews with police and fire personnel to volunteer that he had discussed the possibility of hiring someone to set fire to his property.

The Court of Appeals reversed Cetlinski's conviction on the ground that the impeachment use of his failure to volunteer that he had discussed the possibility of hiring someone to set fire to his property violated the rule stated in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). Because we conclude that any error did not prejudice Cetlinski's defense, we concur in the reversal of the judgment of the Court of Appeals.

I

Cetlinski owned a bar. The bar burned down. Cetlinski was convicted of arson.

During the prosecution's case in chief, Gloria Rodriquez, one of Cetlinski's former employees, testified that Cetlinski had on one occasion discussed with her the possibility of setting fire to the bar and that he had asked her if she knew anyone who would set the fire.[3] Rodriquez added that on *765 several occasions Cetlinski had told her to forget about setting fire to the bar.

On direct examination, Cetlinski acknowledged the conversation with Rodriquez whom he characterized as the initiator. He testified generally that he was not serious about hiring someone to set fire to the bar. Cetlinski said that on several occasions he told Rodriquez to forget about setting a fire.

On cross-examination, Cetlinski characterized as a joke the conversation during which he had asked if Rodriquez knew anyone who would set a fire. He added that it was out of curiosity that he asked Rodriquez to make inquiries about hiring an arsonist. The prosecutor asked Cetlinski about his failure to mention the conversation with Rodriquez during his discussions with police and fire investigators.

The prosecutor's initial question was directed to discussions with investigators immediately after the fire.[4] Cetlinski's lawyer objected and moved for a mistrial; the motion was denied and the objection was overruled. The prosecutor then resumed his previous line of inquiry. This time, his questions covered a broader time frame.[5]

*766 The Court of Appeals reversed Cetlinski's conviction on the ground that the cross-examination violated the rule stated in Bobo.[6] This Court vacated the judgment of the Court of Appeals and remanded the case for reconsideration in light of People v Collier, 426 Mich 23; 393 NW2d 346 (1986).[7] On remand, the Court of Appeals adhered to its earlier decision.[8]

II

We agree with the majority that the decision of the Court of Appeals should be reversed. Any error in the prosecutor's cross-examination did not prejudice Cetlinski's defense and therefore does not require reversal of his conviction.

Rodriquez' testimony regarding her discussion with Cetlinski was properly introduced in the prosecution's case in chief. Cetlinski testified on direct examination that he was not serious about hiring someone to set fire to his bar, and on cross-examination that the conversation with Rodriquez was a joke. The prosecutor then brought out that Cetlinski had not mentioned the conversation to the police. Cetlinski's explanation for having failed to do so was that he "forgot about it."

If the jurors believed Cetlinski's testimony that the conversation was intended as a joke, they would not have expected him to have mentioned the conversation to the police and they would not have drawn any adverse inference from his failure *767 to do so.[9] If the jurors did not believe Cetlinski's testimony that the conversation was intended as a joke, disclosure of Cetlinski's failure to mention the conversation would not have caused them to draw an inference concerning guilt because they would already have drawn that inference as a consequence of their decision not to believe his exculpatory explanation for the conversation. Thus, the evidence of Cetlinski's "silence" could not have significantly[10] prejudiced his defense.

On the facts of this case, we conclude that any error does not require reversal.[11]

No more needs to be said to decide this case.

III

Although the majority acknowledges that resolution of the merits is not necessary for decision in the instant case,[12] it nonetheless chooses to selectively address other "issues."

A

The majority in effect overrules People v Bobo, holding that Bobo is henceforth to be construed as a superfluous reference to the minimal requirements *768 of the United States Constitution,[13] whatever they may be.

We will not belabor stare decisis. A majority of the Court can overrule a precedent for a good reason, a bad reason, or no reason at all. The majority's stated reason for overruling Bobo is to eliminate confusion in the law. That might be a persuasive reason for overruling Bobo if the majority's decision eliminated or reduced confusion instead of replacing one form of possible confusion with another.

We continue to believe that "because the United States Supreme Court does not require us to do so" is not a valid reason for overruling precedents of this Court that provide greater protection to accused persons than the minimum protection mandated by the federal Constitution. When the United States Supreme Court rules that a particular state court practice does not violate the United States Constitution, it does not thereby express an opinion on whether the practice is a sound practice or recommend its adoption by other state courts or even the federal courts.[14]

The notion that this Court should automatically retreat from its precedents to the extent it can do so without running afoul of the minimum requirements of the United States Constitution amounts, in effect, to an assertion that the best policy is whatever the United States Supreme Court will allow the state with the lowest standard to get *769 away with. We dissent from the race to the bottom.[15]

B

The majority also declares that the prosecutor's cross-examination did not violate Cetlinski's rights under the United States Constitution.[16]

When a defendant remains silent after the receipt of Miranda warnings, the Due Process Clause generally bars the impeachment use of the defendant's silence. Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).[17] Thus, if the prosecutor's inquiry on cross-examination referred to post-Miranda discussions with police and fire investigators, there might have been a constitutional violation.

The record is unclear whether, and if so, when, Cetlinski received Miranda warnings during his various conversations with law enforcement personnel.

Factual findings whether, and if so, when, Cetlinski received Miranda warnings should precede a determination of whether the prosecutor's cross-examination referred to both pre- and post-Miranda "silence" and was therefore impermissibly broad.[18] Without such factual findings, there is not *770 an adequate predicate for a determination of whether the cross-examination in fact violated the Due Process Clause.

The majority declares, without factual findings, that the prosecutor's cross-examination did not violate Cetlinski's rights under the Due Process Clause. The majority begins with the purposeful assumption that the prosecutor's inquiry was limited to the pre-Miranda time frame,[19] an assumption that the majority seeks to justify on the bases that the record is unclear whether, and if so, when, Cetlinski received the Miranda warnings,[20] and that the Court of Appeals failed to base its decisions on the receipt of those warnings.[21]

The majority chooses to ignore that when Cetlinski was tried, the exclusion of evidence of a defendant's pretrial silence did not depend on whether the Miranda warnings had been given.[22] There was thus no reason for Cetlinski or the prosecutor to have developed a factual record regarding the warnings.

Nor was there reason for the Court of Appeals to predicate its decisions on the receipt of Miranda warnings. The Court of Appeals initial decision was issued before this Court limited the scope of *771 Bobo in People v Collier. On remand, the Court of Appeals concluded that the limitation of Bobo adopted in Collier was not applicable.[23] The Court of Appeals determined on remand that the instant case was controlled by Bobo, not by Collier. There was still no reason for the Court of Appeals to base its decision on the receipt of Miranda warnings.[24]

A claim of Doyle error may properly be rejected *772 on the basis of the inadequacy of the record.[25] Alternatively, an appellate court may properly remand[26] to provide the defendant an opportunity to develop a factual record that would substantiate a Doyle claim.[27]

A defendant should not be denied an opportunity to develop an evidentiary record that would substantiate a claim of Doyle error on the basis of a "failure" to develop such a record where the trial occurred before this Court's declaration in the instant case that Michigan law is coextensive with the minimal requirements of the Due Process Clause of the Fourteenth Amendment. Neither the prosecutor nor the defendant can properly be held accountable for a failure to develop an evidentiary record in conformity with subsequent developments in Michigan law.

Since the Court chooses to hold litigants strictly liable for their lack of prescience, the Court should at least be consistent. It is remarkable that the *773 Court is willing although unnecessary for decision, we all agree to march up the mountain, consider, and then march down the mountain to reject on the merits a claim of Doyle error, but is unwilling to continue its trek and address the evidentiary admissibility of the challenged testimony "because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier."[28] The concerns so expressed by the majority are equally applicable to the inadequacy of the record regarding the receipt of Miranda warnings.

To be sure, the record as it now stands tends to support the contention that the cross-examination was not Doyle error.[29] But the record as it now stands similarly tends to support the contention that the challenged testimony was inadmissible under an evidentiary analysis.[30]

C

Because the Court has decided to treat the instant case as not involving post-Miranda "silence," we agree that the Court is not called on to decide the applicability of Doyle to the "partially silent" defendant.

IV

The impeachment use of a defendant's pretrial silence raises important issues under conventional *774 evidence law. Evidence of a defendant's silence is not automatically admissible because the United States Constitution does not bar its introduction.

A

The majority recognizes that an evidentiary analysis applies when it is sought to use a defendant's silence for impeachment.[31] Indeed, this Court remanded this very case for reconsideration in light of Collier.[32] The majority avoids addressing the merits of the evidentiary question in the instant case on the basis that any error does not require reversal of Cetlinski's conviction.[33]

The majority says, and we agree, that "the record is insufficient to permit us to determine whether there was evidentiary error because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier."[34]

Ordinarily, we would not fault the majority's reticence. A definitive pronouncement on the evidentiary question is, we all agree, unnecessary for decision in the instant case. However, in light of the majority's decision to utilize this case as a platform for the issuance of "definitive" pronouncements on other aspects of substantive law, the majority might more properly go on to say whether the challenged testimony was admissible *775 under an evidentiary analysis, a question that must be answered whenever the prosecutor seeks to elicit a defendant's pretrial silence.

The majority asserts that it is further limiting, actually eliminating, Bobo to rectify confusion and uncertainty.[35] In the process, it has put in question, if not eliminated, much of the Michigan case law concerning the admissibility of silence. Instead of clarity and certainty, the majority leaves a vacuum in the wake of today's decision.

B

To be admissible, evidence must be "relevant" in that it "makes `the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'"[36] There are accordingly two components of "relevance," and if either is not present, the evidence is not admissible. The evidence must be probative,[37] and it must be material.[38]

Although there are a number of means by which a witness' testimony may be impeached, the impeachment use of "silence" is customarily justified on the basis that the "silence" amounts to a prior inconsistent statement. Where this is the theory of impeachment, evidence of a defendant's "silence" standing alone or in conjunction with other evidence is not admissible unless it tends to prove that the defendant by his silence made a *776 "statement." Once it has been determined that the silence tends to prove the defendant made a "statement," it is necessary to determine whether the defendant's "statement" is material in that it is sufficiently inconsistent with his trial testimony to shed light on the credibility of that testimony.

It is the probativeness prong that raises the most troublesome questions when a defendant's "silence" is used for impeachment purposes. A defendant's "silence" does not necessarily mean anything. There will often be a large number of possible explanations for a defendant's failure to provide information.

To be admissible as a prior inconsistent statement, it must be possible to conclude with some degree of certainty that a likely explanation for the defendant's "silence" among the many available explanations is that the defendant did not assert a particular fact to which he testified at trial because that fact did not exist.

Stated differently, if there is no reason to expect a person to have asserted a fact if the fact did exist and no reason to expect a person to have asserted the fact if the fact did not exist, evidence of the person's failure to assert the fact does not tend to prove the fact did not exist.

In Collier, this Court held that the impeachment use of a defendant's "prearrest silence" does not violate the Self-Incrimination Clause of the Michigan Constitution, Const 1963, art 1, § 17.[39] The *777 Court limited Bobo to "those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers."[40] The Court did not stop there. Rather, it discussed and developed an analytical framework for determining the admissibility of prearrest silence.

Collier involved the impeachment use of a defendant's prearrest failure to come forward and inform the police that he had been the victim of an armed robbery.[41] The Court held that Collier's failure to report the crime was admissible to impeach his trial testimony because, under the circumstances related by him, it would have been natural to report the crime.[42] Since it would have been natural for Collier to have come forward, his failure to do so had probative value to impeach his testimony that he was the victim of a crime.

In Collier, the defendant's testimony was impeached with his failure to seek out the police and inform them that he had been the victim of a crime. Cetlinski's testimony was impeached with his failure to volunteer information that would have tended to incriminate him with respect to the crime being investigated. The only apparent difference *778 between Collier and the instant case is that Cetlinski appears to have made some statements to law enforcement personnel, whereas Collier made no statements (i.e., he failed to come forward).

Another analytical framework was applied in People v Cole, 411 Mich 483; 307 NW2d 687 (1981). Cole was charged with assault with intent to commit murder. She told the police that when she shot the victim, she believed he was attempting to arm himself with a metal dog stake. On direct examination, however, Cole testified that she thought the victim was attempting to arm himself with a gun. The prosecutor cross-examined Cole with respect to her prior inconsistent statement.

This Court held that "the cross-examination of the defendant with regard to her prior inconsistent statement was permissible."[43] The Court distinguished Bobo on the ground that Cole "had made a statement which conflicted with her testimony at trial."[44] The Court also quoted from Anderson v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 222 (1980), where the United States Supreme Court holding that the impeachment use of a defendant's prior inconsistent statement does not violate the rule stated in Doyle said that "`[a]s to the subject matter of his statements, the defendant has not remained silent at all.'"[45]

In Cole, the defendant's testimony was impeached with a prior statement that was actually inconsistent with her trial testimony. Cetlinski's testimony was not impeached with a prior statement that was actually inconsistent with his trial testimony. His testimony was impeached with his *779 failure to make a statement about the conversation with Rodriquez.

Although Cetlinski did not make a statement that was actually inconsistent with his trial testimony, that does not render Cole inapplicable. Similarly, although Cetlinski made statements to law enforcement personnel, that does not render Collier inapplicable. Rather, Cole and Collier occupy two ends of a continuum. Whether a given case is more like Cole or more like Collier will depend on the facts of the case.

The majority says that "omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute `silence.'"[46] We agree that whether the defendant made prior statements concerning "the same subject matter" as his testimony may be an important factor in determining the admissibility of the defendant's failure to mention the facts to which he testifies at trial. The difficulty lies in determining whether a pretrial "statement" concerns "the same subject matter" as subsequent trial testimony.[47]

The majority also says that "the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact."[48] Although some of the authority cited by the majority does not appear to support the proposition for *780 which it is cited,[49] we agree that whether the defendant has formerly narrated on the same subject as his trial testimony may be an important factor in determining the admissibility of his failure to mention a fact to which he testifies at trial. The difficulty, again, lies in determining whether a pretrial "statement" amounts to a "narration."

There are no bright-line rules for determining the admissibility of a defendant's failure to volunteer information during a pretrial statement. The primary consideration is whether there is a basis on which it can be said with a reasonable degree of certainty that the defendant's failure to volunteer information is probative with respect to some fact that tends to impeach his trial testimony. The defendant's "silence" must have an assertive quality.

Two attributes of a defendant's pretrial statements may be germane to this inquiry: the "quantity" of the statements, and their "quality." The more a defendant said about a given subject the more his statements purported to be a complete description of a given event the greater is the likelihood that the defendant's failure to volunteer particular information is probative. Likewise, the *781 more narrowly a defendant confines the subject matter of his statements, the greater is the likelihood that his failure to mention a fact related to that narrow subject matter is probative.

C

If evidentiary error would require reversal of Cetlinski's conviction, it would indeed be appropriate to remand "because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier."[50] "For the benefit of the bench and bar," we consider, in light of the demise of Bobo, the admissibility of Cetlinski's failure during discussions with police and fire officials to mention his conversation with Rodriquez.

On the present record, we would hold that Cetlinski's failure to mention the conversation did not have probative value because it would not have been natural for Cetlinski to have volunteered the information.[51] We would hold, in agreement with the Court of Appeals, that the prosecutor's cross-examination was improper.[52]

The present record contains nothing more than general testimony that Cetlinski engaged in conversations with police and fire investigators. There is little specific evidence about Cetlinski's statements during those discussions. There is no evidence that Cetlinski was asked a question, or volunteered information, regarding any conversation with Rodriquez. Nor is there any evidence *782 that Cetlinski was asked a question that would call on him to mention the disputed conversation.

On this record, the probative value of Cetlinski's failure to mention the conversation with Rodriquez is not enhanced by his pretrial statements. This case presents a situation like that in Collier where the defendant's failure to come forward with information not prior "statements, including omissions" was the basis for the prosecutor's impeachment.

Cetlinski first spoke with law enforcement personnel while his bar was still ablaze. During this questioning, Trooper Bowman asked Cetlinski whether he had insurance on the bar and whether he was behind on his taxes or other payments. Under the circumstances, it would not have been natural for Cetlinski to spontaneously assert that "five or six months ago I asked someone to look into hiring an arsonist to burn my bar, but I was only joking."[53]

Cetlinski's "exculpatory" version of the conversation with Rodriquez was highly incriminatory. An innocent person is no more likely to volunteer self-incriminating information than a guilty person. Cetlinski's failure to mention the conversation had little or no probative value with respect to whether the conversation actually occurred as described in his testimony.[54]

*783 On this record, to suggest otherwise would be tantamount to holding that all persons innocent and guilty have a duty to volunteer self-incriminating information. Such a holding would be contrary to the decisions of this Court. Long ago, the Court concluded that a person was not under a moral or legal obligation to deny an incriminatory accusation made by an ordinary citizen.[55] Likewise, a person does not have an affirmative duty to volunteer self-incriminating information to a police officer.

V

The majority in effect overrules People v Bobo by holding that this Court's decision in that case is *784 henceforth to be construed coextensively with the minimal requirements of the United States Constitution.

A

The decision in Bobo was based on constitutional, evidentiary, and natural law concerns.

With respect to the federal constitutional privilege against self-incrimination, the Court said that "whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the Fifth Amendment guarantees that his silence may not be used against him."[56] We agree that United States Supreme Court decisions since Bobo establish that this was an overly broad statement, or prediction, of the extent to which the United States Constitution protects a defendant from the evidentiary use of his pretrial silence.[57]

Bobo also relied, however, on this Court's pre-Miranda decision in People v Bigge, 288 Mich 417; *785 285 NW 5 (1939). There, the Court found error requiring reversal in the prosecutor's reference to Bigge's failure to deny an incriminatory accusation made in his presence.[58] The Court ruled that evidence of an incriminatory accusation made in a defendant's presence and his failure to deny the accusation is not admissible as substantive evidence of guilt.[59]

Bobo also was predicated on evidentiary principles. The Court in effect said that evidence of a defendant's pretrial silence is not admissible as a prior inconsistent statement or as the admission of a party-opponent.[60] The Court thus appears to have concluded that silence is not an assertion that the events did not occur in the manner in which the defendant later testified.[61]

The Court also drew upon nonlegal, yet authoritative, texts. The Court observed that the rule against the evidentiary use of a defendant's silence "`has higher sanction than mere judicial precedent,'" and illustrated by quoting from the New Testament.[62]

*786 The rule stated in Bobo thus had a number of doctrinal sources. One of those sources was indeed the Fifth Amendment privilege against self-incrimination. In light of the post-Bobo decisions of the United States Supreme Court, it is clear that the Fifth Amendment rationale no longer supports the rule stated in Bobo.[63]

The majority overrules Bobo in response to these developments in Fifth Amendment jurisprudence. Overruling Bobo is not, however, the correct response.

The invalidation of one of the several rationales for the decision in Bobo does not justify the elimination without further explanation of the rule there stated. The majority does not explain why the other bases of the Bobo decision were incorrect or insufficient to support the rule stated in Bobo.[64]

B

The majority's decision implicates a wide array of issues not presently before the Court.

The instant cases do not involve:

the substantive use of a defendant's failure to come forward and provide information to the police;[65]

*787 the substantive or impeachment use of a defendant's total silence, or failure to answer particular questions, during prearrest investigative contacts with the police;[66]

the substantive use of a defendant's failure to make particular assertions during prearrest investigative contacts with the police;[67]

the substantive or impeachment use of a defendant's total silence, failure to answer particular questions, or failure to make particular assertions, after the defendant has been arrested but before he has received the Miranda warnings;

the substantive or impeachment use of a defendant's postarrest, post-Miranda failure to make particular assertions;[68] and

the impeachment use of a defendant's postarrest, post-Miranda failure to answer particular questions.[69]

By failing expressly to reserve these issues, the majority's opinion could be read as obiter dictum on a scale not seen since Bobo.[70] Issues not truly before the Court are better left unanswered until they are presented in the context of actual cases. *788 Many of those issues are presented in cases now being held in abeyance.[71]

C

By in effect overruling Bobo, the majority effectively eliminates much of the case law regarding the admissibility of a defendant's silence. Although the majority says that an evidentiary analysis must be applied when determining the admissibility of a defendant's pretrial silence,[72] the majority nonetheless chooses not to apply an evidentiary analysis in this case.

Nevertheless, trial judges and the Court of Appeals are obliged to carefully examine the evidentiary admissibility of a defendant's pretrial silence because whether or not the United States Constitution is implicated, a defendant's silence is not generally admissible.

To suggest otherwise would be a significant step toward a transformation of the criminal justice system. It is fundamental that our legal system is adversarial, not inquisitorial. In a criminal prosecution, the state must prove its case and overcome the presumption of innocence without involuntary assistance from the defendant.

When a person is questioned during a police investigation, he has the choice of volunteering information and answering questions, or of remaining silent. If he chooses to "cooperate," his statement can be used against him at trial as substantive evidence of guilt or for impeachment purposes. Given the potentially adverse consequences of making a statement, it is understandable *789 that many persons, innocent and guilty, choose to remain silent.

If a defendant's silence during police questioning were routinely admitted without adequate inquiry, a person under investigation would have become unable to avoid providing grist for the prosecutor's mill. What he says could be used against him and what he does not say could be used against him.[73] The majority presumably does not take such a drastic step toward transforming the criminal justice system from adversarial to inquisitorial.[74]

D

Notwithstanding the intervening developments in Fifth Amendment jurisprudence,[75] we would adhere to the rule stated in Bobo. To dispel any future confusion as to its doctrinal source,[76]*790 we would hold that henceforth, as adumbrated in Collier, Bobo should be understood as a rule of evidence that reflects a general assessment concerning the probative value and prejudicial effect of reference to a defendant's pretrial silence.[77]

This was the approach of the New York Court of Appeals, which relied on evidentiary principles alone[78] to support a general prohibition of the use of a defendant's pretrial silence, concluding:

Because evidence of a defendant's pretrial silence may have a disproportionate impact upon the minds of the jurors and because the potential for prejudice inherent in such evidence outweighs its marginal probative worth, we conclude that the use of such evidence for impeachment purposes cannot be justified in the absence of unusual circumstances.... [People v Conyers, 52 NY2d 454, 459; 438 NYS2d 741; 420 NE2d 933 (1981) (Conyers II).][[79]]

CAVANAGH and ARCHER, JJ., concurred with LEVIN, J.

NOTES

[1] This Court cannot avoid addressing this issue by concluding as Justice LEVIN does that the error did not prejudice the defendant's defense. Post, p 764.

[2] People v Cetlinski, unpublished opinion of the Court of Appeals, decided May 19, 1986 (Docket No. 83585).

[3] People v Cetlinski, 428 Mich 861 (1987).

[4] People v Cetlinski (On Remand), unpublished opinion per curiam of the Court of Appeals, decided June 8, 1987 (Docket No. 98518).

[5] This includes each Court of Appeals panel in the instant case and the companion cases, that concluded a reversal was dictated by the rationale in Bobo. People v McReavy, unpublished opinion per curiam of the Court of Appeals, decided January 14, 1987 (Docket No. 88620); People v Sutton, unpublished opinion per curiam of the Court of Appeals, decided April 24, 1986 (Docket No. 81069).

[6] People v Wigfall, 160 Mich App 765; 408 NW2d 551 (1987).

[7] If the Court of Appeals had based its decision on a subsidiary finding that the defendant had been given Miranda (v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 [1966]) warnings, which it clearly did not, a finding of a violation of the Fifth Amendment would still be incorrect under federal law. Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (per curiam).

[8] Miranda, n 7 supra.

[9] Justice LEVIN argues that the record is unclear whether Cetlinski received Miranda warnings during his various conversations with law enforcement personnel. Absent a factual finding whether the warnings were given and if so, when defendant received them, he asserts there cannot be an accurate determination whether the impeachment use of Cetlinski's prearrest silence violated the Due Process Clause. However, in Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982), the United States Supreme Court made such a determination in a postarrest situation, holding that there was no due process violation in the prosecutor's use of a defendant's postarrest silence for impeachment purposes, and clarifying that Doyle is applicable only if the issue involves post-Miranda silence.

The Fletcher Court did not base its decision on a factual finding that Miranda warnings were not given. Rather it stated that the record was unclear whether the defendant had received such warnings and noted that "[t]he significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest." Id., p 605.

In Doyle, the Court held the impeachment use of a defendant's post-Miranda silence violated the Due Process Clause because the defendant had relied on the implicit governmental assurance in the Miranda warnings that his silence would not be used against him. Absent evidence of Miranda warnings in the record, there simply is no Doyle error. This was true in Fletcher and is true in Cetlinski also. Justice LEVIN'S statement that such factual findings should precede a determination of whether the cross-examination violates the Due Process Clause is simply incorrect. (Post, pp 769-770.)

[10] Consequently, this defendant's conviction cannot be reversed unless the court determines whether there was an evidentiary error and if so, whether the admission of the evidence constituted a "miscarriage of justice." MCL 769.26; MSA 28.1096.

[11] See 3 Weinstein & Berger, Evidence, ¶ 607[06], pp 607-97 to 607-98. See also 3A Wigmore, Evidence (Chadbourn rev), § 1042, pp 1056-1058.

[12] As the United States Supreme Court said in Anderson v Charles, 447 US 404, 409; 100 S Ct 2180; 65 L Ed 2d 222 (1980), "[e]ach of two inconsistent descriptions of events may be said to involve `silence' insofar as it omits facts included in the other version [but] [t]he questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement."

Moreover, this Court itself has unanimously recognized the rule in Anderson as a proper interpretation of our own rules of evidence. In People v Cole, 411 Mich 483; 307 NW2d 687 (1981), we held that cross-examination of the defendant with regard to her failure to include certain details in a prior inconsistent statement was permissible under the Michigan Rules of Evidence. This Court found the Cole situation was similar to that confronted by the United States Supreme Court in Anderson v Charles, supra, and noted that "`cross-examination that merely inquires into prior inconsistent statements ... makes no unfair use of silence.... As to the subject matter of his statements, the defendant has not remained silent at all.'" Cole, p 488. (Emphasis added.)

[13] See also 3 Weinstein & Berger, Evidence, ¶ 607[06], p 607-101:

The approach of relying during cross-examination on a failure of a witness to tell all the details of his observations at a preliminary interview or proceeding is often used by defense counsel.... [Id.]

[14] The witness also stated that a couple times after that the defendant again told her to forget it and that she had assured him it was forgotten.

[15] The defendant testified that right after the waitress began working for him, one day when the two of them were by themselves in the bar, she suggested that she call someone and check on the possibility of having someone burn the bar.

[16] The defendant was not under arrest, nor was there any claim that he was the focus of the investigation.

[17] The defendant made no objection that there was an insufficient foundation to determine whether there was an inconsistency between the contents of the prior statements and defendant's trial testimony.

[18] Defense counsel never requested any special instruction regarding the questioning and testimony of the defendant concerning his failure to mention the conversation with the employee to the police.

[19] The Court found this language of Bobo literally required such a conclusion:

We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. "Nonutterances" are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.

* * *

Whether his silence was prior to or at the time of arrest makes little difference the defendant's Fifth Amendment right to remain silent is constant. [Bobo, supra, pp 359-360. Emphasis added.]

[20] The panel believed that none of the decisions limiting the rule of Bobo were applicable to the present case. See, e.g., People v Karam, 106 Mich App 383; 308 NW2d 220 (1981), lv den 414 Mich 870 (1982); People v Lane, 127 Mich App 663; 339 NW2d 552 (1983).

[21] Justice LEVIN'S opinion fails to acknowledge this primary reliance on the Fifth Amendment, thus permitting or suggesting the clearly incorrect theory that Bobo allows an evidentiary analysis of the relevancy of a witness' failure to make certain statements.

[22] People v Ray, 119 Mich App 724; 326 NW2d 622 (1982); People v Hoshowski, 108 Mich App 321; 310 NW2d 228 (1981); People v Wade, 93 Mich App 735; 287 NW2d 268 (1979).

[23] During this period, the Court of Appeals had issued in excess of eighty published opinions involving the Bobo issue, all without guidance from this Court.

[24] Compare People v Cetlinski (On Remand), n 4 supra, with People v Wigfall, n 6 supra, p 780, in which the Court of Appeals held that in the absence of further guidance from this Court, "we deem it appropriate to look to the United States Supreme Court for guidance."

[25] People v Wells, 102 Mich App 558; 302 NW2d 232 (1980), lv den 417 Mich 916 (1983); People v Fortuin, 143 Mich App 279; 372 NW2d 530 (1985); People v Gant, 55 Mich App 510; 222 NW2d 784 (1974).

[26] People v Cetlinski, 429 Mich 858 (1987).

[27] Contrary to the finding by the Court of Appeals on initial appeal, the questioning by the prosecutor was not limited to the time period immediately after defendant was awakened by the police the night of the fire.

[28] On remand, the Court of Appeals held that Bobo precludes impeachment with silence during a prearrest investigation by the police. However, we clearly had stated in Collier, supra, p 39, that Bobo "is confined to impeachment for and comment on silence at the time of arrest in the face of accusation." Because the Fifth Amendment would permit impeachment and comment, the Court of Appeals finding of error can only be sustained if Bobo rests on an independent state constitutional ground.

[29] This Court has emphasized a receptivity to independent examination of the meaning of our own constitution. That inquiry invites, at a minimum, public policy reasons or prior decisions of this Court which would require a different interpretation. See Paramount Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984); People v Nash, 418 Mich 196; 341 NW2d 439 (1983).

However, to the extent that Bobo was based upon an understanding of the Fifth Amendment in excess of the now clearly defined constitutional standard, "[W]e decline to now convert our past misunderstandings of Miranda into an interpretation of that provision." People v Hill, 429 Mich 382, 392; 415 NW2d 193 (1987).

To the extent Bobo was based on this Court's ruling in People v Bigge, 288 Mich 417; 285 NW 5 (1939), we find that that case has no application to the facts of the instant case. See n 35, p 763.

[30] In regard to the issue whether defendant's rights guaranteed under the Fourteenth Amendment were violated, Justice LEVIN'S discussion of Doyle, supra, is curious, given the fact that this defendant has never asserted, nor does the record support such a finding, that the prosecutor cross-examined the defendant about his failure to tell the police about the conversation with his employee after he was given Miranda warnings. There has never been a suggestion or a finding that the "silence at issue" (that is, the omission of the defendant's conversation with Rodriquez from his conversations with the police) occurred after receipt of Miranda warnings. See n 9.

[31] As a general rule of evidence, prior silence of a witness with regard to a fact to which he has testified, where such silence occurs under circumstances in which he would be expected to speak out, may be used to impeach during cross-examination. 3A Wigmore, Evidence (Chadbourn rev), § 1042, p 1056.

[32] Jenkins v Anderson, supra, p 240, established that the state may allow impeachment with prearrest silence without infringing upon federal constitutional rights, emphasizing "[e]ach jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial." See also 3 Weinstein & Berger, Evidence, ¶ 607[06], p 607-99.

With regard to this type of cross-examination, designed to shed light on the credibility of a defendant's direct testimony, the test of relevancy is not whether the answer sought will prove the main issue, but whether it will be useful and aid the jury in appraising the credibility of the witness and assess the probative value of the direct testimony. McCormick, Evidence (3d ed), § 29, p 63.

[33] A majority of the justices is persuaded that the record is insufficient to allow a comparison between in-court assertions and out-of-court statements under an evidentiary approach.

[34] Although we do not address the question whether it would have been "natural" for the defendant to mention the waitress' conversation with him in the immediate wake of the fire, we note that the responding opinion continues to place undue focus on that time in its evidentiary analysis. This question must be considered in light of the fact that the prosecutor's inquiry to the defendant was why he had not mentioned this version of the conversation during the numerous times he talked with different police officers at different times during the subsequent six-month investigation.

Justice LEVIN finds that

[o]n the present record, we would hold that Cetlinski's failure to mention the conversation did not have probative value because it would not have been natural for Cetlinski to have volunteered the information. We would hold, in agreement with the Court of Appeals, that the prosecutor's cross-examination was improper. [Post, p 781.]

In contrast we find that on this record, we cannot decide whether there was Collier error.

[35] Therefore, the holding of People v Bigge, n 29, supra, where the Court found error requiring reversal in the use of a defendant's silence as substantive evidence of his guilt, has no application to the circumstances of the present case. Id., p 430. In Bigge, this Court found that the prosecutor's allegation during the opening statement that the unanswered allegation by another that the defendant was guilty of embezzlement was proof the defendant was guilty, was just as prejudicial to a defendant as testimony of a former plea of guilty would be on the trial of the case if the defendant had pleaded guilty and then changed his plea. Id., p 431.

[1] MCL 750.75; MSA 28.270.

[2] The issue in the companion case of People v McReavy, 436 Mich 197; 462 NW2d 1 (1990), concerns the substantive use of McReavy's failure during postarrest, post-Miranda interrogation to respond to questions regarding his involvement in a robbery/kidnapping. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

The issue in the companion case of People v Sutton (After Remand), 436 Mich 575; ___ NW2d ___ (1990), concerns the impeachment use of Sutton's failure to come forward and inform the police that he had shot someone but that it was an accident, and of his postarrest, post-Miranda silence.

I would not release the opinions in this case until the Court is prepared to release the opinions in the companion cases.

[3] According to Rodriquez, this conversation took place two or three months before the fire. According to Cetlinski, the conversation took place in June or July of 1983, which was five or six months before the fire. Rodriquez also testified that Cetlinski said he would pay the arsonist $500 from the insurance proceeds. Cetlinski denied making such a statement.

In Rodriquez' account, Cetlinski described how the fire should be set. In Cetlinski's version, such details were not discussed. The manner in which the fire was actually set corresponded to the description allegedly given by Cetlinski.

[4] Mr. Cetlinski, after the fire when you saw these things out there, why didn't you tell the police about this conversation [the waitress] had had with you?

A. Because it was just ...

[5] Mr. Cetlinski, during the course of the investigation of this fire at your bar, you talked to the police officers a number of times; isn't that correct?

A. Yes.

Q. Different officers at different times?

A. Yes.

Q. During any of the course [sic] of those conversations with those officers, did you ever mention to them this conversation you had with [the waitress]?

A. No.

Q. You didn't tell them about that at all?

A. No.

Q. Why didn't you tell them about that at all?

A. I didn't I forgot about it.

[6] People v Cetlinski, unpublished opinion per curiam of the Court of Appeals, decided May 29, 1986 (Docket No. 83585).

[7] People v Cetlinski, 428 Mich 861 (1987).

[8] People v Cetlinski (On Remand), unpublished opinion per curiam of the Court of Appeals, decided June 8, 1987 (Docket No. 98518).

[9] Cetlinski's "silence" was consistent with his version of the conversation with Rodriquez.

[10] The evidence of Cetlinski's "silence" might have confirmed conclusions concerning his guilt that members of the jury had already reached. It is thus possible that the evidence substantiated an inference that would have been impermissible if based on Cetlinski's "silence" alone.

Any undue prejudice from this use of Cetlinski's silence was significantly less harmful than the prejudice from Rodriquez' testimony regarding her conversation with Cetlinski and from Cetlinski's admissions regarding the conversation.

[11] The majority agrees with this assessment of the record. See ante, p 759.

[12] See n 11.

[13] See ante, pp 759-760 and 763.

[14] See, generally, 76 ABA J 27 (August, 1990), where Chief Justice Burger commented:

"Many lawyers, upon hearing a condemnation of advertising, will say, `Well the Supreme Court said it's all right to do it.' The Supreme Court said no such thing. The fact that the Constitution permits particular conduct does not mean that it's professionally appropriate to engage in that conduct."

[15] We also disagree with this aspect of the Court's ruling for the reasons set forth in part V.

[16] See ante, pp 745, 759, and 763.

[17] When a defendant's silence occurs before the receipt of Miranda warnings, the Due Process Clause does not bar impeachment with the defendant's silence. See Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980), and Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982).

[18] When confronted with prosecutorial cross-examination that does not clearly distinguish between pre- and post-Miranda silence, courts have found Doyle error. United States ex rel Allen v Franzen, 659 F2d 745, 748 (CA 7, 1981), State v Wells, 229 Neb 89, 100; 425 NW2d 338 (1988), and State v Lofquest, 227 Neb 567, 570; 418 NW2d 595 (1988).

[19] See ante, p 746 ("the critical events took place prearrest and pre-Miranda and thus there could be no due process claim that the state unfairly used defendant's silence or omission against him at trial in violation of the implicit assurance in Miranda that silence will not be penalized").

[20] See ante, p 760, n 30 ("[the dissent's] discussion of Doyle, supra, is curious, given the fact that this defendant has never asserted, nor does the record support such a finding, that the prosecutor cross-examined the defendant about his failure to tell the police about the conversation with his employee after he was given Miranda warnings").

[21] See ante, p 745, n 7.

[22] When this case was tried, the controlling law was the Court's decision in Bobo, which adopted a virtually absolute prohibition of the evidentiary use of a defendant's pretrial silence and which was based on a different rationale than the one later developed by the United States Supreme Court in Doyle v Ohio.

[23] In Collier, p 31, the Court said that "the Bobo holding only applied to those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers." The Court also said, however, that Bobo is "confined to impeachment for and comment on silence at the time of arrest in the face of accusation." Id., p 39.

When a defendant's silence occurs during a prearrest police contact, the two formulations may yield different results with respect to the applicability of Bobo. This divergence is reflected in recent decisions of the Court of Appeals. Compare People v Sligh, unpublished opinion per curiam of the Court of Appeals, decided October 14, 1987 (Docket No. 93016) (Supreme Court Docket No. 81963, now being held in abeyance) (Bobo still applies to silence during a prearrest police contact), with People v Smith, 158 Mich App 220; 405 NW2d 156 (1987) (Bobo does not apply to silence during a prearrest police contact), and People v Nimmons, unpublished opinion per curiam of the Court of Appeals, decided November 5, 1987 (Docket No. 98982) (Supreme Court Docket No. 82285, now being held in abeyance).

In the instant case, the Court of Appeals interpreted Collier as limiting Bobo to situations where the defendant's silence occurs during contact with police officers. See People v Cetlinski (On Remand), n 8 supra. The Court of Appeals reading of Collier is reasonable. Statements in judicial opinions are customarily construed with reference to the facts of the case in which the statements were made. See Collier, p 31 (in discussing the statement in Bobo, p 360, that "the defendant's Fifth Amendment right to remain silent is constant," the Court explained that "[t]hat statement must be interpreted in light of the facts and in the context of Bobo"). In Collier, the defendant's silence did not occur during prearrest police contacts; it occurred before any police contact whatsoever. Id., pp 31-32.

The majority asserts that "we clearly had stated in Collier, supra, p 39, that Bobo `is confined to impeachment for and comment on silence at the time of arrest in the face of accusation.'" Ante, p 759, n 28. See also ante, p 757. That holding was "clear" only if one ignores the facts of Collier and the other statements in the Court's opinion, including the Court's statement that "the holding of this case [i.e., Collier] is limited to only those situations where the `silence' that is questioned occurs before any contact with the police." Collier, p 32, n 2.

[24] See n 22.

[25] In Fletcher v Weir, n 17 supra, the United States Supreme Court indicated that a record, that does not establish that the defendant received Miranda warnings during the postarrest period in which he remained silent, is not a sufficient basis on which to find Doyle error.

[26] Nothing in the opinion in Weir, n 17 supra, suggests that remand is improper, and the subsequent history of that case indicates that an evidentiary hearing was eventually held. See Weir v Wilson, 744 F2d 532 (CA 6, 1984).

When exercising direct review, several federal courts have indicated that remand is appropriate. See United States v Massey, 687 F2d 1348, 1353 (CA 10, 1982), and United States v Cummiskey, 728 F2d 200 (CA 3, 1984). See also United States v Pino, 827 F2d 1429, 1432 (CA 10, 1987).

[27] The record indicates that Cetlinski spoke with Trooper Dennis Bowman (during the fire), Fire Chief James VanDoren (immediately after the fire was contained), Detective-Sergeant John Fatchett (the day after the fire), Detective-Sergeant Jack Messer (the officer who signed the criminal complaint), and Detective-Lieutenant Thomas Majeske.

Although the prosecutor's initial question was apparently directed to Cetlinski's conversation with Trooper Bowman (see n 4), his later questions referred to all of Cetlinski's discussions with police and fire personnel (see n 5). Cetlinski may have received the Miranda warnings during one or more of these conversations.

[28] Ante, p 761.

[29] There is a superficial plausibility in the majority's assumption that the cross-examination of Cetlinski was limited to the pre-Miranda time frame. There was no testimony regarding custodial interrogation, and it appears that most of Cetlinski's conversations with law enforcement personnel occurred before he was arrested.

[30] See part IV(C).

[31] See, for example, ante, p 759 ("Consistent with our rationale in Collier, we conclude that an evidentiary approach to the use of a defendant's prearrest, pre-Miranda statements, including omissions, will adequately protect the policy interest in foreclosing the factfinder from unfair inferences of guilt"). See also ante, pp 746-747 and 759.

[32] See n 7.

[33] See ante, p 761.

The majority's invocation of "harmless error" is somewhat incongruous given its decision to abandon similar considerations of judicial restraint with respect to the other substantive issues in this case.

[34] Ante, p 761. See also ante, p 762, n 34.

[35] See ante, pp 745, 755, and 757-758.

[36] Ante, p 747 (quoting MRE 401).

[37] In the language of MRE 401, the evidence must tend "to make the existence of any fact ... more probable or less probable than it would be without the evidence."

[38] In the language of MRE 401, the fact which the evidence tends to prove or disprove must be "of consequence to the determination of the action."

[39] See Collier, supra, pp 36-39.

The Court rejected Collier's contention that the impeachment use of his prearrest silence violated the Due Process Clause of the Michigan Constitution (Const 1963, art 1, § 17) because the evidence lacked probative value. The Court concluded that the challenged evidence was probative. See Collier, p 37.

When this Court decided Collier, the United States Supreme Court had already held that the impeachment use of a defendant's prearrest silence does not violate the United States Constitution. See Jenkins v Anderson, n 17 supra.

[40] Collier, p 31.

The alternative formulation is that the Court limited Bobo to "impeachment for and comment on silence at the time of arrest in the face of accusation." Collier, p 39. See also n 23.

[41] Collier was charged with assault with intent to commit murder. He testified at trial that he was the victim of an armed robbery and that he had stabbed one of his "assailants" in self-defense.

[42] The Court explained:

[W]e believe it is entirely natural and expected that one who has been robbed under the circumstances related by the defendant would report the crime to the police. Defendant knew the identity of the robber and the location of the robbery. It would have been natural for him to report the crime to the police, to have the assailant arrested, and to retrieve his property. [Id., pp 34-35.]

[43] Id., p 488.

[44] Id., p 487 (emphasis added).

[45] Cole, p 488 (quoting Charles, supra, p 408).

[46] Ante, p 748.

It is unimportant whether a defendant's failure to volunteer information during a pretrial statement is described as an "omission" or as "silence." Admissibility is a function of relevance, not labels.

[47] The cases cited by the majority (see ante, p 748, n 12) are not very helpful. Both Charles and Cole involved impeachment with prior statements that were actually inconsistent with the defendant's trial testimony. Those cases offer little guidance where the defendant's pretrial statements and testimony are inconsistent only by implication.

[48] Ante, p 748.

[49] The majority cites 3 Weinstein, Evidence, ¶ 607[06], pp 607-97 to 607-98. See ante, p 748, n 11. The cited passage reads:

Another perplexing point is whether a failure to assert a fact it would have been natural to affirm amounts to an assertion of the nonexistence of the fact which can be used to impeach testimony in which the witness admitted the fact's existence. According to Wigmore such a failure to make an assertion should be admitted as a prior inconsistent statement, and the federal cases are in accord. [Citations omitted.]

The cited passage is a mirror image of this Court's analysis in Collier. See ns 39-42 and the accompanying text. The failure to assert a fact is treated as an assertion of the nonexistence of the fact because it would have been natural to assert the fact, not as the majority suggests because the witness has formerly narrated on the same subject as his trial testimony.

[50] Ante, p 761.

[51] We thus disagree with the trial court to the extent its decision to allow the cross-examination was based on an assessment of the probative value of Cetlinski's "silence."

[52] For the reasons discussed in part II, the error does not require reversal.

[53] The majority notes that the prosecutor's cross-examination inquired into Cetlinski's failure during the entire course of the investigation not only during the initial discussion with Trooper Bowman to mention the conversation with Rodriquez. See ante, p 762, n 34. In light of the initial conversation and in the absence of any record evidence suggesting that the import of that conversation (i.e., that Cetlinski was a "suspect") was erased by subsequent developments, we do not believe it would have been natural for Cetlinski to have mentioned the conversation at any time during the investigation.

[54] See Commonwealth v Nickerson, 386 Mass 54, 60-61; 434 NE2d 992 (1982) (discussed and cited with approval in Collier, supra, pp 32-34), where the Supreme Judicial Court of Massachusetts concluded:

It would not have been "natural" for the defendant to have come forward in the circumstances of this case and produce incriminating evidence against himself. While the use of this defendant's pre-arrest silence would apparently not violate due process principles of the Fourteenth Amendment ..., his failure to come forward in these circumstances says little about the truth of his trial testimony.

See also State v Merola, 214 NJ Super 108, 117-118; 518 A2d 518 (1986), and Silvernail v State, 777 P2d 1169, 1178 (Alas App, 1989).

[55] See People v Bigge, 288 Mich 417, 420; 285 NW 5 (1939), where the Court said:

The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt.

Bigge involved the substantive use of a defendant's failure to deny an incriminatory accusation made in his presence. We agree with the majority that the Court's decision in that case does not control this case. See ante, p 763, n 35. Unlike the majority, however, we would not rely on Justice POTTER'S separate opinion not joined by any other justice to characterize the Court's decision in Bigge.

[56] Bobo, p 361.

The Court also said that "[w]hether [Bobo's] silence was prior to or at the time of arrest makes little difference the defendant's Fifth Amendment right to remain silent is constant." Id., p 360.

[57] Contrary to the statements in Bobo, the Fifth Amendment is not implicated when a defendant's trial testimony is impeached with his pretrial silence. See Jenkins v Anderson, n 17 supra. Rather, it is the "fundamental fairness" component of the Due Process Clause that governs such impeachment.

When a defendant's silence occurs before the receipt of Miranda warnings, the Due Process Clause does not bar impeachment with the defendant's silence. Jenkins; Fletcher v Weir, n 17 supra. When a defendant remains silent after the receipt of Miranda warnings, the Due Process Clause generally does bar impeachment with such silence. Doyle v Ohio, supra.

The United States Supreme Court has thus drawn the line of demarcation at the giving of Miranda warnings. Contrary to the broad statement in Bobo, it is not constitutionally dispositive that the defendant's silence occurred during interrogation by the police.

The United States Supreme Court has not spoken respecting the substantive use of a defendant's pre-Miranda silence. Bobo's reliance on the Fifth Amendment may to that extent ultimately prove to be correct.

[58] In his opening statement, the prosecutor said:

"[T]his person, his brother-in-law in fact, said to this witness who will testify, `What's the use of going over this matter again. Charles [the defendant] is guilty as hell.'"

After an objection, the prosecutor continued:

"I haven't finished. Charles Bigge could have said right there if it wasn't true. It was his duty to have said so." [Id., p 419.]

[59] See id., p 420 (quoted in n 55).

[60] Bobo, p 359 ("`Nonutterances' are not statements").

[61] A defendant's pretrial silence could be used, however, to contradict his testimony about pretrial events. People v Graham, 386 Mich 452; 192 NW2d 255 (1971) (cited in Bobo, p 359).

In Graham, the Court held that rebuttal testimony regarding the defendant's silence was proper because "[Graham's] refusal to speak is inconsistent with his testimony at trial that he was constantly attempting to explain to the police what had occurred." Id., p 458.

[62] Bobo, p 362 (quoting State v Hogan, 252 SW 387, 388 [Mo, 1923]). The Court quoted two excerpts from the Book of Matthew recounting the Trial of Jesus. See Matthew 26:57-68 (during His trial before the Sanhedrin, Jesus remained silent in the face of false accusations); Matthew 27:11-25 (before Pontius Pilate, Jesus again remained silent in the face of accusation).

See, generally, Rosenberg & Rosenberg, In the beginning: The Talmudic rule against self-incrimination, 63 NYU L R 955 (1988).

[63] But see n 57 (last paragraph).

[64] The majority largely ignores those other bases for decision (see ante, pp 755-756), thereby conveying the incorrect impression that Bobo was predicated solely on the United States Constitution.

[65] The companion Sutton case concerns the impeachment use of a defendant's failure to come forward.

The Court of Appeals found error requiring reversal in the substantive use of a defendant's failure to come forward in People v Patterson, 170 Mich App 162; 427 NW2d 601 (1988) (Supreme Court Docket No. 84341, now being held in abeyance).

[66] In People v Sligh (Supreme Court Docket No. 81963, now being held in abeyance), the Court of Appeals found error requiring reversal in the rebuttal use of a defendant's total silence during investigative contacts with the police.

[67] The instant case involves the impeachment use of a defendant's failure to make particular assertions during such contacts.

[68] In People v Talley (Supreme Court Docket No. 84360), the Court of Appeals found no error in the impeachment use of a defendant's failure to assert an exculpatory version during a postarrest, post-Miranda interview.

[69] The companion McReavy case involves the substantive use of a defendant's postarrest, post-Miranda failure to answer particular questions.

[70] Cf. ante, p 755 (referring to the "facts, holding, and dicta of Bobo").

[71] See ns 65-69 and the accompanying text.

[72] This aspect of the majority's decision is discussed more fully in part IV(A).

[73] Although the United States Supreme Court has not addressed the question whether the constitution prohibits the substantive use of a defendant's pre-Miranda silence, under certain circumstances such use of a defendant's silence may be unconstitutional. Thus, there may still be situations in which a defendant's silence could only be used for impeachment purposes.

In such situations, an accused, who "chose" to give evidence in the form of pre-Miranda silence instead of a pre-Miranda statement, could "take back" the evidence by not testifying at trial. It is not unconstitutional for the state to require an individual to waive his right to testify as the price for not using against him at trial evidence that he could not avoid giving in the first place. See Jenkins v Anderson, n 17 supra. It does, however, seem contrary to fundamental principles of fairness in an adversarial system that the only way an accused can avoid giving evidence against himself is by remaining silent both before and during trial.

[74] The tension between an adversarial system of justice and the evidentiary use of an accused's silence has been recognized. See People v Edelbacher, 47 Cal 3d 983, 1041; 254 Cal Rptr 586; 766 P2d 1 (1989) (Mosk, J., concurring) (quoting People v Free, 131 Cal App 3d 155, 166; 182 Cal Rptr 259 [1982]), and State v Jones, 461 So 2d 97, 101 (Fla, 1984) (Boyd, C.J., dissenting). See also People v Wade, 93 Mich App 735, 738; 287 NW2d 368 (1979).

[75] See n 57.

[76] Although the majority may be correct in asserting that there is some uncertainty concerning Bobo's doctrinal source (see ante, pp 745, 755, and 757-758), the majority's solution does not eliminate uncertainty from this area of the law. The validity under the United States Constitution of the substantive use of a defendant's pre-Miranda silence, and of the substantive and impeachment use of a defendant's post-Miranda "partial silence," is uncertain at present. In effect, the majority replaces the uncertainty concerning Bobo's doctrinal source with uncertainty concerning how the now-"clarified" law is to be applied.

[77] This reading finds support in the language of this Court's opinion (see ns 60-61 and the accompanying text), and some Court of Appeals opinions. See People v Staley, 127 Mich App 38, 41-42; 338 NW2d 414 (1983), and People v Karam, 106 Mich App 383, 391, n 3; 308 NW2d 220 (1981).

Even if the sole rationale for Bobo were the Fifth Amendment, we note that other courts that have held that evidence of a defendant's silence is generally inadmissible have done so moving from a constitutional rationale to an evidentiary one, and vice versa. Compare People v Conyers, 49 NY2d 174; 424 NYS2d 402; 400 NE2d 342 (1980) (constitutional grounds), vacated and remanded in light of Jenkins v Anderson, n 17 supra, with People v Conyers, 52 NY2d 454; 438 NYS2d 741; 420 NE2d 933 (1981) (evidentiary grounds). Compare, also, United States v Hale, 422 US 171; 95 S Ct 2133; 45 L Ed 2d 99 (1975) (evidentiary grounds) with Doyle v Ohio, supra (constitutional grounds).

[78] Cf. Collier, supra, p 38, expressing this Court's reluctance to be the first court to construe a state constitution more expansively than the federal constitution with respect to the evidentiary use of a defendant's prearrest silence.

[79] Although Conyers II involved postarrest, pre-Miranda silence, the court's opinion refers generally to "pretrial silence." The New York Court of Appeals recently "extended" Conyers II to prearrest silence. See People v De George, 73 NY2d 614; 543 NYS2d 11; 541 NE2d 11 (1989).