PEOPLE OF MI V JONATHAN D HICKMAN
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 122548
JONATHAN D. HICKMAN,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
In this case, we must determine when the right to
counsel attaches to corporeal identifications.
We adopt
the analysis of Moore v Illinois, 434 US 220; 98 S Ct 458;
54 L Ed 2d 424 (1977), and hold that the right to counsel
attaches only to corporeal identifications conducted at or
after
the
initiation
proceedings.
Mich
155;
of
adversarial
judicial
criminal
To the extent that People v Anderson, 389
205
NW2d
461
(1973),
goes
beyond
the
constitutional text and extends the right to counsel to a
time
before
the
initiation
of
adversarial
criminal
proceedings,
it
is
overruled.
The
Court
of
Appeals
a
firearm
decision is affirmed.
FACTUAL HISTORY
I.
Defendant
was
AND
convicted
PROCEDURAL POSTURE
of
possession
of
during the commission or attempted commission of a felony,
MCL
750.227b(1);
conspiracy,
MCL
750.157a;
and
armed
robbery, MCL 750.529, for robbing the complainant of $26
and two two-way radios.
The complainant testified that
two men approached him from behind and robbed him.
He
testified
as
that
one
of
the
men,
later
identified
defendant, pointed a gun at his face while the other person
took the radios and money.
The complainant then called the
police and gave a description of the two men, as well as a
description of the gun.
An officer soon saw a man fitting the description of
the
man
with
defendant,
was
the
gun.
caught
The
after
a
man,
later
foot
chase.
identified
During
as
the
chase, the police saw defendant throw something and they
later
recovered
complainant’s
a
chrome
description
handgun
of
the
that
gun.
matched
the
Defendant
was
carrying one of the two-way radios.
Approximately ten minutes later, an officer took the
complainant to a police car in which defendant was being
held.
The officer asked the complainant if the person
2
sitting in the police car was involved in the robbery.
The
complainant immediately responded that defendant was the
man who had the gun.
Defendant’s
motion
to
suppress
an
on-the-scene
identification by the victim on the ground that defendant
was
not
represented
identification
was
by
counsel
denied,
and
at
the
defendant
time
was
of
the
convicted.
The Court of Appeals affirmed defendant’s conviction.1
The
Court held that the prompt on-the-scene identification did
not
offend
the
requirements
set
forth
in
Anderson
and
rejected defendant=s due process claim, holding that the
identification was not unduly suggestive.
Defendant
appealed,
and
this
Court
granted
leave,
limited to the issue “whether counsel is required before an
on-the-scene identification can be admitted at trial.”
468
Mich 944 (2003).
II. STANDARD
OF
REVIEW
This Court reviews de novo questions of law relevant
to a motion to suppress.
People v Hawkins, 468 Mich 488,
496; 668 NW2d 602 (2003).
The inquiry here involves issues
of constitutional law, which are also reviewed de novo.
People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001).
1
Unpublished opinion per curiam, issued September 17,
2002 (Docket No. 232041).
3
III. DISCUSSION
A. BACKGROUND: PEOPLE
V
ANDERSON
In Anderson, the right to counsel was extended to all
pretrial
corporeal
identifications,
including
those
occurring before the initiation of adversarial proceedings.
This extension of United States v Wade, 388 US 218; 87 S Ct
1926;
18
L
Ed
identification
2d
1149
procedures
(1967),
to
all
based
on
“psychological
was
pretrial
principles,” 389 Mich 172-180, and “social science,” 389
Mich 182.
Notably
absent
was
any
grounding
constitution or state constitution.
391
Mich
323,
acknowledged
338;
that
217
the
NW2d
in
our
federal
In People v Jackson,
22
(1974),
Anderson
this
rules
Court
were
not
constitutionally mandated:
The . . . Anderson rules . . . represent the
conclusion of this Court, independent of any
Federal constitutional mandate, that, both before
and after commencement of the judicial phase of a
prosecution,
a
suspect
is
entitled
to
be
represented
by
counsel
at
a
corporeal
identification . . . . [Emphasis added.]
The Jackson Court affirmed the Anderson rules, however, as
an
exercise
establish
proceedings
of
the
Court’s
rules
of
evidence
in
Michigan
“constitutional
courts
applicable
and
to
to
power
to
judicial
preserve
best
evidence eyewitness testimony from unnecessary alteration
4
by unfair identification procedures . . . .”
339.
Id. at 338-
Finally, in People v Cheatham, 453 Mich 1, 9 n 8; 551
NW2d 355 (1996), this Court noted in obiter dictum that the
right to counsel under Const 1963, art 1, § 20 “attaches
only
at
or
after
the
initiation
of
adversary
judicial
proceedings by way of formal charge, preliminary hearing,
indictment, information, or arraignment.”
Thus,
the
constitutional
Anderson
rules
provision,
lack
a
whether
foundation
state
or
in
any
federal.
Instead, the rules reflect the policy preferences of the
Anderson Court.
Similarly, the Jackson Court’s attempt to
rationalize the promulgation of the rules as an exercise of
the Court’s authority to promulgate rules of evidence is
unpersuasive.
The
Anderson
rules
encompassed
more
than
purely evidentiary matters,2 and the rationale underlying
them has since been disapproved in Moore.
B. MOORE
V
ILLINOIS
In Moore, the United States Supreme Court adopted the
plurality opinion in Kirby v Illinois, 406 US 682; 92 S Ct
1877; 32 L Ed 2d 411 (1972), holding:
2
See McDougall v Schanz, 461 Mich 15, 29; 597 NW2d 148
(1999), which disapproved of previous blanket statements of
authority over all matters relating to the admission of
evidence.
5
[T]he right to counsel announced in Wade[
supra] and Gilbert [v California, 388 US 263; 87
S Ct 1951; 18 L Ed 2d 1178 (1967),] attaches only
to corporeal identifications conducted “at or
after
the
initiation
of
adversary
judicial
criminal proceedings—whether by way of formal
charge,
preliminary
hearing,
indictment,
information, or arraignment” . . . because the
initiation
of
such
proceedings
“marks
the
commencement of the criminal prosecutions to
which alone the explicit guarantees of the Sixth
Amendment[3] are applicable.”
[Moore, supra at
226-227 (citations omitted).]
The
Court
before
the
further
noted
initiation
of
that
identifications
adversarial
judicial
conducted
criminal
proceedings could still be challenged:
In such cases, however, due process protects
the accused against the introduction of evidence
of,
or
tainted
by,
unreliable
pretrial
identifications obtained through unnecessarily
suggestive procedures.
[Id. at 227 (emphasis
added; citations omitted).]
3
The Sixth Amendment of the United States Constitution
provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed,
which
district
shall
have
been
previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining witnesses
in his favor, and to have the Assistance of
counsel for his defense. [Emphasis added.]
6
Therefore, it is now beyond question that, for federal
Sixth
Amendment
purposes,
the
right
to
counsel
attaches
only at or after the initiation of adversarial judicial
proceedings.
This
conclusion
is
also
consistent
with
our
state
constitutional provision, Const 1963, art 1, § 20, which
provides:
In every criminal prosecution, the accused
shall have the right to a speedy and public trial
by an impartial jury, which may consist of less
than 12 jurors in prosecutions for misdemeanors
punishable by imprisonment for not more than 1
year; to be informed of the nature of the
accusation; to be confronted with the witnesses
against him or her; to have compulsory process
for obtaining witnesses in his or her favor; to
have the assistance of counsel for his or her
defense; to have an appeal as a matter of right,
except as provided by law an appeal by an accused
who pleads guilty or nolo contendere shall be by
leave of the court; and as provided by law, when
the
trial
court
so
orders,
to
have
such
reasonable assistance as may be necessary to
perfect and prosecute an appeal.
[Emphasis
added.]
As Judge YOUNG noted in his opinion in People v Winters, 225
Mich
App
718,
723;
571
NW2d
764
(1997),
neither
the
Anderson decision nor the Jackson decision was based on our
state
constitutional
provision;
therefore,
those
cases
cannot be read as expanding art 1, § 20 protections beyond
those provided by the Sixth Amendment.
Further, this Court
has already noted in Cheatham, albeit in obiter dictum,
7
that
a
defendant’s
right
to
counsel
under
art
1,
§
20
attaches only at or after the initiation of adversarial
judicial proceedings.
This Court also held in People v
Reichenbach,
109,
459
Mich
119-120;
587
NW2d
1
(1998),
quoting People v Pickens, 446 Mich 298, 318; 521 NW2d 797
(1994):
[T]here exists no structural differences
with regard to the right to assistance of counsel
between
federal
and
Michigan
provisions.
Moreover, no peculiar state or local interests
exist in Michigan to warrant a different level of
protection with regard to the right to counsel in
the instant case. Both the federal and the state
provisions originated from the same concerns and
to protect the same rights.
Because the Moore analysis is consistent with both US
Const, Am VI and Const 1963, art 1, § 20, which expressly
apply only to criminal prosecutions, we adopt that analysis
and
hold
corporeal
that
the
right
identifications
to
counsel
conducted
attaches
at
or
only
after
to
the
initiation of adversarial judicial criminal proceedings.4
Further,
we
agree
with
Judge
YOUNG’s
observation
in
Winters that the Anderson decision generated considerable
4
Because the instant case involves a corporeal
identification conducted
prior to the initiation of
adversarial judicial proceedings, we do not, contrary to
the dissent’s contention, address whether a defendant has a
right to an attorney after the initiation of adversarial
judicial proceedings during a photographic showup. Post at
2.
8
confusion
regarding
its
proper
application.
First,
the
Court in People v Marks, 155 Mich App 203, 209-210; 399
NW2d 469 (1986), noted that although Anderson appeared to
be a Sixth Amendment case, it was really divorced from any
constitutional
Court
considerations.
observed
that
Nevertheless,
the
issue
of
the
Marks
on-the-scene
identification is still often raised in the context of the
Sixth Amendment right to counsel.
The
Winters
Court
also
lamented
the
lack
of
any
simple, practical standard regarding on-the-scene corporeal
identifications.
In People v Dixon, 85 Mich App 271, 280-
281; 271 NW2d 196 (1978), the Court held that if the police
have
“more
wanted
for
than
the
a
mere
crime,
suspicion”
there
can
that
be
the
no
suspect
is
on-the-scene
corporeal identification; rather, the suspect must be taken
to the police station and participate in a lineup with
counsel present.
In People v Turner, 120 Mich App 23, 36;
328 NW2d 5 (1982), however, the Court found the Dixon rule
too difficult5 and, instead, held that police may conduct
on-the-scene
identifications
without
counsel
unless
the
police have “very strong evidence” that the person stopped
5
It must be noted that the Turner Court did retain the
Dixon standard where the police have already validly
arrested the suspect for an unrelated offense.
Turner,
supra at 37.
9
is the perpetrator.
“Very strong evidence” was defined as
“where the suspect has himself decreased any exculpatory
motive,
i.e.,
where
he
has
confessed
or
presented
the
police with either highly distinctive evidence of the crime
or a highly distinctive personal appearance.”
Id. at 36-
37.
As
the
Winters
Court
noted,
the
Turner
“strong
evidence” rule is hardly more workable than Dixon’s “more
than a mere suspicion” rule.
Rather than perpetuate the
confusion in this area, we take this opportunity to adopt
the Moore analysis and clarify that the right to counsel
attaches only to corporeal identifications conducted at or
after
the
initiation
of
adversarial
judicial
criminal
proceedings. This eliminates any unwarranted confusion and
allows
the
focus
to
be
on
whether
the
identification
procedure used violates due process.6
6
Although we recognize the importance of stare decisis,
it is appropriate to overrule Anderson because, as
explained above, it is clearly inconsistent with Const
1963, art 1, § 20.
Further, there are no relevant
“reliance” interests involved and overruling Anderson
would, therefore, not produce any “practical real-world
dislocations.” See Robinson v Detroit, 462 Mich 439, 465466; 613 NW2d 307 (2000).
Contrary to the dissent’s
suggestion, this Court has never held that a “special
justification” must be established before this Court will
depart from precedent.
Post at 9.
Finally, as explained
above, the courts have had considerable difficulty in
10
IV. APPLICATION
The on-the-scene identification in this case was made
before the initiation of any adversarial judicial criminal
proceedings; thus, counsel was not required.
Therefore,
this Court affirms the decision of the Court of Appeals.
V. CONCLUSION
The Anderson rule, extending the right to counsel to
all
pretrial
basis.
identifications,
Consistently
with
is
both
without
the
constitutional
United
States
Constitution and the Michigan Constitution, we adopt the
straightforward analysis of Moore v Illinois and hold that
the
right
to
identifications
counsel
conducted
attaches
at
or
only
after
the
adversarial judicial criminal proceedings.
to
corporeal
initiation
of
The Court of
Appeals decision is affirmed.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
applying
Anderson,
and
the
resulting
confusion
and
instability also demonstrate the need to overrule Anderson.
11
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 122548
JONATHAN D. HICKMAN,
Defendant-Appellant.
_______________________________
KELLY, J. (dissenting).
To
the
majority
casual
decision
reader,
may
be
the
rationale
for
After
all,
elusive.
today's
as
the
majority correctly notes, the case deals with law that has
been relatively well-settled for close to thirty years:
potential
criminal
defendant
Amendment
right
counsel
occur
before
proceedings,
to
the
such
does
during
initiation
as
a
of
formal
not
have
a
identifications
adversarial
charge
or
a
Sixth
that
judicial
preliminary
hearing. Moore v Illinois, 434 US 220, 226-227; 98 S Ct
458; 54 L Ed 2d 424 (1977); People v Jackson, 391 Mich 323,
338; 217 NW2d 22 (1974); see also People Cheatham, 453 Mich
1, 9 n 8; 551 NW2d 355 (1996), citing People v Wright, 441
Mich 140, 173; 490 NW2d 351 (1992) (Riley, J., dissenting);
Moran v Burbine, 475 US 412, 430; 106 S Ct 1135; 89 L Ed 2d
410 (1986).
Nor
has
this
Court
held
that
the
protective
rules
enumerated by People v Anderson1 and its progeny apply to
on-the-scene identification procedures and require counsel
during those procedures. People v Anderson, 389 Mich 155,
186 n 23; 205 NW2d 461 (1973).
true.
In fact, the opposite is
Id.
Yet
the
majority
resolve these issues.
potential
defendant's
undertakes
today
ostensibly
to
Its purpose is to take away the
entitlement
to
counsel
during
all
preindictment2 proceedings by overruling Anderson and its
progeny.
Hereafter, a defendant, in custody but not yet
indicted,
will
challenge
procedures.
no
longer
photographic
The
police
have
the
practical
or
corporeal
will
be
able
ability
to
identification
to
conduct
such
procedures without allowing a defendant's attorney to be
present. Moreover, even after the initiation of adversarial
judicial procedures, a criminal defendant will no longer
have the right to counsel during a photographic showup.
1
389 Mich 155, 186 n 23; 205 NW2d 461 (1973).
2
For ease of explanation, I use the term "preindictment
identifications" to refer to identifications that occur
before the initiation of adversarial judicial proceedings.
2
Because I do not see any good reason to depart from
longstanding precedent, I must respectfully dissent.
The majority is not correct in its assertion that,
under Anderson, "the right to counsel was extended to all
pretrial
corporeal
occurring
before
identifications,
the
proceedings." Ante at 4.
initiation
including
of
those
adversarial
Anderson, which itself dealt with
the right to counsel for pretrial custodial photographic
showup procedures, set forth "justified" exceptions, albeit
arguably in dicta, for the absence of counsel at eyewitness
identification procedures.
were
emergency
identification
Notably included as exceptions
situations
and
"prompt,
requiring
immediate
'on-the-scene'
corporeal
identifications within minutes of the crime . . . ."
at
187
n
23
(citations
omitted).
We
have
Id.,
since
specifically affirmed the Anderson exception for prompt onthe-scene identifications.
City of Troy v Ohlinger, 438
Mich 477, 487; 475 NW2d 54 (1991).
The majority could reaffirm the Anderson exception for
prompt on-the-scene identifications, or perhaps enlarge the
explanation
of
the
exception
framework for the lower courts.
chooses
to
preindictment
remove
the
to
protections
procedures.
3
a
workable
Instead, it unnecessarily
Anderson
identification
provide
It
from
is
all
an
ill-
conceived
decision
decisis.
that
ignores
principles
of
stare
It also fails to consider the adverse effect on
defendants'
rights
identifications
are
to
be
not
assured
obtained
that
through
pretrial
mistake
or
unnecessarily suggestive procedures.
In deciding to remove the Anderson protections for all
preindictment
decide
an
longstanding
identifications,
issue
already
precedent,
the
decided.
asserting
majority
It
that
chooses
sweeps
the
to
aside
Anderson
protections reflect the policy preferences of the Anderson
Court and that the
Jackson
Anderson Court's ruling.3
Court failed to justify the
Apparently the majority's own
"policy preferences" outweigh those of the members of the
Anderson
members
Court and the
of
this
Court.
Jackson
Unlike
3
Court, as well as other
the
majority,
I
believe
The majority relies on McDougall v Schanz, 461 Mich
15, 29; 597 NW2d 148 (1999), for the proposition that this
Court "disapproved of previous blanket statements of
authority over all matters relating to the admission of
evidence."
I did not then, nor do I now, agree with the
majority opinion in McDougall. But it is my understanding
that McDougall was not a broad disapproval of blanket
statements regarding the admission of evidence. Rather, it
was a disapproval of a specific rule of evidence. Even the
McDougall majority acknowledged that the line between
substantive law and practice and procedure must be drawn
case by case.
McDougall, supra at 36.
The McDougall
decision concerned the interaction of statutes and this
Court's constitutional rule-making authority over "practice
and procedure."
Because there is no statute at issue in
this case, McDougall is not applicable.
4
Anderson was decided with due deference to the practical
problems
of
concerned
ensuring
that
the
accurate
majority’s
identifications.
I
policy
gives
decision
am
insufficient thought to the underlying rationale for our
long-existing decision to grant counsel to defendants where
practicable.
Anderson discussed at length the scope of the problem
of
misidentifications,
particularly
in
the
use
of
photographic identification procedures. Anderson, supra at
182-187, 192-220 Appendix A.
not diminished with time.
P2d
774,
alike:
Am
J
779-780
These concerns have certainly
(Utah,
See, e.g., Utah v Ramirez, 817
1991);
Rutledge,
They
all
look
The inaccuracy of cross-racial identifications, 28
Crim
L
207,
209-210
(2001);
eyewitness identification evidence:
Brigham,
Disputed
important legal and
scientific issues, 36 Ct Rev 12, 12-13 (1999).
Wise, A
survey of judges' knowledge and beliefs about eyewitness
testimony, 40 Ct Rev 6, 6-8 (2003); Risinger, Three card
monte, Monty Hall, modus operandi and "offender profiling":
Some lessons of modern cognitive science for the law of
evidence, 24 Cardozo L Rev 193, 194 (2002).
The latter law
review article noted that the past century has seen the
accumulation
of
literally
thousands
weakness of eyewitness testimony.
5
Id.
of
studies
on
the
Defendant points out in his appellate brief that in
1996,
after
DNA
identification
techniques
became
more
common, the United States Justice Department conducted a
study
of
exonerated
report.
Connors,
science:
Case
establish
Convicted
studies
innocence
commissioned
by
defendants
in
after
the
and
by
the
trial
National
prepared
juries,
use
of
research
exonerated
DNA
(1996).
Institute
a
evidence
to
study
was
Justice.
It
The
of
by
reviewed twenty-eight cases where the defendants had been
exonerated
through
the
use
of
DNA
identification
techniques.
Among
majority
of
the
conclusions
cases,
reached
"eyewitness
compelling evidence.
was
testimony
that,
was
in
the
the
most
Clearly, however, those eyewitness
identifications were wrong." Id. at 24.
Notably, one of
the significant factors of misidentification listed in the
Justice Department report involves an issue directly raised
in the instant case and the majority's decision to overrule
Anderson: the potential susceptibility of eyewitnesses to
suggestions
from
the
police,
unintentional. Id.
6
whether
intentional
or
One
of
the
major
underpinnings
of
the
Anderson
decision, and the later affirmation in Jackson,4 was the
recognition
of
identification
recognized
difficulties
evidence.
the
Nonetheless,
obtaining
Courts
continued
this
with
and
reliable
scholars
validity
these
refuses
Court
of
to
recognize
have
concerns.
that
Anderson's rules were, in fact, grounded on more than a
transient
The
notion
of
majority
what
does
the
so
Sixth
with
Amendment
barely
a
requires.
nod
to
the
principle of stare decisis. As my frequent colleague in the
dissent so well articulated recently, "[t]he doctrine of
stare decisis is more than a fad and decades of precedent
cannot
be
readily
discounted
as
the
majority
suggests."
Monat v State Farm Ins Co, 469 Mich 679, 699; 677 NW2d 843
(2004)
(Cavanagh,
J.,
dissenting).
"The
application
of
stare decisis is generally the preferred course because it
promotes
the
development
of
evenhanded,
legal
judicial
decisions,
perceived
integrity
and
of
predictable,
principles,
fosters
contributes
the
and
judicial
to
the
consistent
reliance
on
actual
and
process."
People
v
Petit, 466 Mich 624, 633; 648 NW2d 193 (2002) (citations
and internal quotation marks omitted).
4
Jackson, supra at 338-339.
7
Even if this Court has found that an error occurred,
before
it
"'overrules
a
decision
deliberately
made,
it
should be convinced not merely that the case was wrongly
decided,
but
also
that
less
injury
will
result
from
overruling than from following it.'" Id. at 634, quoting
McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006
(1904).
I take as my
guide the following from the recent
United Supreme Court opinion in Dickerson v United States,
530 US 428, 443-444; 120 S Ct 2326; 147 L Ed 2d 405 (2000),
discussing
the
requirement
of
Miranda5
warnings
during
interrogations:
Whether or not we would agree with Miranda's
reasoning and its resulting rule, were we
addressing the issue in the first instance, the
principles of stare decisis weigh heavily against
overruling it now. See, e.g., Rhode Island v.
Innis, 446 U.S. 291, 304, 64 L. Ed. 2d 297, 100
S. Ct. 1682 (1980) (Burger, C. J., concurring in
judgment) ("The meaning of Miranda has become
reasonably clear and law enforcement practices
have adjusted to its strictures; I would neither
overrule Miranda, disparage it, nor extend it at
this late date"). While "'stare decisis is not an
inexorable command,'" State Oil Co. v. Khan, 522
U.S. 3, 20, 139 L. Ed. 2d 199, 118 S. Ct. 275
(1997) (quoting Payne v Tennessee, 501 U.S. 808,
828, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991)),
particularly
when
we
are
interpreting
the
Constitution, Agostini v. Felton, 521 U.S. 203,
235, 138 L. Ed. 2d 391, 117 S. Ct. 1997 (1997),
"even in constitutional cases, the doctrine
carries such persuasive force that we have always
5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
8
required a departure from precedent to be
supported
by
some
'special
justification.'"
United States v. International Business Machines
Corp., 517 U.S. 843, 856, 116 S. Ct. 1793, 135 L.
Ed. 2d 124 (1996) (quoting Payne, supra, at 842
(SOUTER, J., concurring) (in turn quoting Arizona
v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164
104 S. Ct. 2305 (1984))).
We do not think there is such justification
for
overruling
Miranda.
Miranda
has
become
embedded in routine police practice to the point
where the warnings have become part of our
national culture. See Mitchell v. United States,
526 U.S. 314, 331-332, 143 L. Ed. 2d 424, 119 S.
Ct. 1307 (1999) (SCALIA, J., dissenting) (stating
that the fact that a rule has found "'wide
acceptance in the legal culture'" is "adequate
reason not to overrule" it). While we have
overruled our precedents when subsequent cases
have undermined their doctrinal underpinnings,
see, e.g., Patterson v. McLean Credit Union, 491
U.S. 164, 173, 105 L. Ed. 2d 132, 109 S. Ct. 2363
(1989), we do not believe that this has happened
to the
Miranda decision. If anything, our
subsequent cases have reduced the impact of the
Miranda rule on legitimate law enforcement while
reaffirming the decision's core ruling that
unwarned statements may not be used as evidence
in the prosecution's case in chief.
In the instant case, the injury done by unnecessarily
overruling Anderson is grave.
Conversely, the continued
use of its precedent would harm no one but those who fail
in their duty to ensure that identifications are made under
circumstances
that
render
them
reliable.
The
use
of
counsel during preindictment procedures has become part of
the accepted practice in Michigan courts.
9
I see nothing
even approaching a "special justification" to depart from
precedent here.6
The majority incorrectly asserts that defendant's due
process
protections
accused
against
identification
ignores
will
be
sufficient
the
introduction
evidence.
reality
identification
of
procedures
the
Ante
at
and
6.
to
protect
of
unreliable
Such
an
numerous
this
the
assertion
preindictment
Court's
attempt
to
ensure that these procedures lead to reliable information.
The
fact
unnecessarily
defendants
that
overturn
during
procedures.
"formally"
attorney
the
Until
charged
during
any
majority
Anderson
other
in
creates
preindictment
today,
but
has
a
defendant
custody
identification
was
seen
a
fit
to
Catch-22
for
identification
who
was
entitled
procedure.
to
Now,
not
an
the
only required persons in the room will be the investigating
6
The majority states that this Court has never held
that a "special justification" must be established before
it will depart from precedent. Ante at 10, n 7.
I
disagree.
See Brown v Manistee Co Rd Comm, 452 Mich 354,
365;
550
NW2d
215
(1996)
(absent
the
rarest
of
circumstances, this Court should remain faithful to
established precedent). It certainly could be said that the
current majority does not share my view and that of Brown.
See Delaney, Stare decisis v The "New Majority": The
Michigan Supreme Court's practice of overruling precedent,
1998-2002, 66 Alb L Rev 871, 903-904 (2003). But I persist
in clinging to this archaic notion despite the urging of my
colleagues.
10
officer and the witness.
to
a
potential
Where the defendant is presented
witness
during
an
on-the-scene
identification, the defendant himself is present to observe
the
actions
defendant
suggestive
and
who
words
has
been
on-the-scene
opportunity
to
present
of
the
officer.
subjected
to
identification
a
coherent
Arguably,
an
a
unnecessarily
procedure
rationale
has
the
for
his
arguments.
In
contrast,
corporeal
a
defendant
identification
who
seeks
to
procedure
will
be
challenge
a
effectively
unable to do so.
He must stand before the one-way glass
and
competence
trust
the
and
conscience
of
the
investigating officer. I doubt that J.R.R. Tolkien's image
of Wormtongue whispering quietly into the ear of Theoden,
King of Rohan7 will be one that is frequently repeated in
practice.
However, even an inadvertent suggestion will be
imperceptible
to
witnessing it.8
a
defendant
who
remains
precluded
from
The majority is essentially creating a
black box into which the defendant will not be allowed to
7
See J.R.R. Tolkien. The Lord of the Rings (New York:
Ballantine Books 1954-1974).
8
See United States v Wade, 388 US 218, 228-230; 87 S Ct
1926; 18 L Ed 2d 1149 (1967) (recognizing that the
"vagaries" of eyewitness testimony during a corporeal
lineup can be effectively challenged only if there is
adequate observation of the process of identification).
11
peer.
It then requires him to refute the premise that what
occurred inside did not violate his right to due process.
Nothing
substitute
in
the
majority's
protections
to
opinion
guard
provides
against
for
overzealous
individual officers or the failure of an officer to avoid
or
correct
cases.
As
potentially
suggestive
one
has
aptly
is
unique
identification
instead
author
evidence
warrant
the
imposition
of
procedures
noted,
in
the
in
these
fact
that
character
greater
should
protections,
rather than less:
In most situations the state simply collects
preexisting evidence about a crime; through
pretrial identifications the state creates a
piece of evidence that would not otherwise exist.
The creation of evidence, rather than its
collection, should impose a special obligation on
the state to behave correctly, because the
creation
of
evidence
presents
heightened
opportunity for wrongdoing and unfairness by the
state and to the detriment of the defendant.
[Rosenberg, Rethinking the right to due process
in
connection
with
pretrial
identification
procedures: An analysis and a proposal, 79 Ky L
J 259, 291-292 (1991). (emphasis omitted).]
I disagree with the majority's decision to effectively
remove any ability for a criminal defendant to raise a due
process
argument
identification
relating
procedures.
to
In
these
so
preindictment
doing,
I
agree
wholeheartedly with Justice Brennan's dissenting statement
12
in Kirby v Illinois, 406 US 682, 699 n 8; 92 S Ct 1877; 32
L Ed 2d 441 (1972):
As the California Supreme Court pointed out,
with
an
eye
toward
the
real
world,
"the
establishment of the date of formal accusation as
the time wherein the right to counsel at lineup
attaches could only lead to a situation wherein
substantially all lineups would be conducted
prior to indictment or information." People v.
Fowler, 1 Cal. 3d 335, 344, 461 P. 2d 643, 650
(1969).
Until today, Michigan has not known this to occur.
However, I seriously doubt that it will long be the case
after the majority's ruling.
In
addition,
the
majority
claims
that
it
is
not
deciding today whether a defendant retains the protection
of counsel at custodial photographic showups, ante at 8 n
5.
However, it is clear from the thrust of the majority
opinion that such protections have been removed.
Anderson
itself involved a photographic lineup where the defendant
was in custody before the photographs were shown to the
witness.
distrust
Anderson, supra at 160. Because of the Court's
of
photographic
identification
procedures,
it
established rules regarding their use, including the right
to
counsel
when
a
suspect
is
in
custody.
See
People
v
Kurylczyk, 443 Mich 289, 298; 505 NW2d 528 (1993), citing
Anderson, supra at 186-187.
13
The
United
States
Supreme
Court
stated
in
United
States v Ash,9 that the Sixth Amendment does not guarantee
the
right
to
counsel
at
photographic
displays
witnesses attempt to identify a suspect.
even when the suspect is in custody.
This is true,
Anderson, supra at
186-187. However, as noted by the majority,
Jackson
took
Ash
into
where
consideration
and
ante at 4,
nevertheless
affirmed the Anderson decision to extend the protections to
suspects in Michigan.
Court
to
exercise
It did so using the power of the
its
authority
to
establish
rules
of
evidence. Jackson, supra at 338.
Today, the majority decides to overrule Anderson and
repudiate the Jackson rationale.
has
removed
photographic
the
protection
showups.
I
Ante at 5.
of
leave
counsel
for
Therefore, it
at
custodial
another
day
an
enumeration of the additional areas of law affected by the
majority's
sweeping
language
and
abdication
of
judicial
power.
I realize that it might be difficult at times for the
majority
to
keep
track
of
the
specific
cases
it
is
overruling.
This is due in part to its propensity to reach
for
and
issues
9
decide
them
with
a
broad
pen
stroke.
413 US 300, 318; 93 S Ct 2568;37 L Ed 2d 619 (1973).
14
However, when one specifically mentions a case by name, it
should
be
easy
to
remember
that
its
holding
must
be
analyzed before it is rejected.
Finally, I disagree with the majority's disposition of
the question whether the identification procedure used here
violated defendant's right to due process irrespective of
whether
a
Sixth
Amendment
right
to
counsel
existed.
Especially because defendant was sixteen at the time of his
arrest, I find troubling the majority's abdication of the
issue
to
the
Court
of
Appeals
without
any
further
explanation.
In conclusion, I believe that the majority has reached
out
to
take
constitutional
whatever
the
Amendment
or
this
case
needlessly
questions.
scope
of
I
would
the
Michigan's
deference
without
a
to
the
comprehension
further
Constitution,
the
to
find
that,
the
Sixth
of
the
decision
of
stare
to
practical
decisis
and
realities
of
frequent eyewitness misidentifications.
Marilyn Kelly
Michael F. Cavanagh
15
address
It has been made without
principles
of
order
protections
overrule Anderson is misguided.
due
in
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