Fifth Amendment privilege in Michigan

2026To protect a defendant’s Fifth Amendment privilege against self-incrimination, custodial interrogation must be preceded by advice to the accused that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” [People v Cortez, 299 Mich App 679, 691 ; 832 NW2d 1 (2013), quoting Miranda, 384 US at 444 .] “Statements made by a defendant to the police during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and intelligently waiv

2026To protect a defendant’s Fifth Amendment privilege against self-incrimination, custodial interrogation must be preceded by advice to the accused that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” [People v Cortez, 299 Mich App 679, 691 ; 832 NW2d 1 (2013), quoting Miranda, 384 US at 444 .] “Statements made by a defendant to the police during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and intelligently waiv

2025See People v McReavy, 436 Mich 197, 203 ; 462 NW2d 1 (1990) (“The admission for substantive purposes of evidence of the defendant’s demeanor and statements made during custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self- incrimination and prior to invoking the right to remain silent is neither error of constitutional dimension nor a violation of the Michigan Rules of Evidence.”). 2 This Court has distinguished claims of “prosecutorial misconduct” from those involving “prosecutorial error,” depending on the severity of the claimed conduct at issu

2025See People v McReavy, 436 Mich 197, 203 ; 462 NW2d 1 (1990) (“The admission for substantive purposes of evidence of the defendant’s demeanor and statements made during custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self- incrimination and prior to invoking the right to remain silent is neither error of constitutional dimension nor a violation of the Michigan Rules of Evidence.”). 2 This Court has distinguished claims of “prosecutorial misconduct” from those involving “prosecutorial error,” depending on the severity of the claimed conduct at issu

2018However, Clifford also expressly concedes that these arguments do not entitle him to relief because Butler testified at trial, thereby alleviating any confrontation clause concerns, People v Pipes, 475 Mich 267, 275 ; 715 NW2d 290 (2006), and because Clifford cannot seek to have Butler’s confession suppressed based on a violation of Butler’s rights, see People v Wood, 447 Mich 80, 89 ; 523 NW2d 477 (1994) (“As a general rule, criminal defendants do not have standing to assert the rights of third parties.”); Paramount Pictures Corp v Miskinis, 418 Mich 708, 715 ; 344 NW2d 788 (1984) (“The Fifth

2018However, Clifford also expressly concedes that these arguments do not entitle him to relief because Butler testified at trial, thereby alleviating any confrontation clause concerns, People v Pipes, 475 Mich 267, 275 ; 715 NW2d 290 (2006), and because Clifford cannot seek to have Butler’s confession suppressed based on a violation of Butler’s rights, see People v Wood, 447 Mich 80, 89 ; 523 NW2d 477 (1994) (“As a general rule, criminal defendants do not have standing to assert the rights of third parties.”); Paramount Pictures Corp v Miskinis, 418 Mich 708, 715 ; 344 NW2d 788 (1984) (“The Fifth

2019ANALYSIS In People v Kowalski, 230 Mich App 464, 472 ; 584 NW2d 613 (1998), this Court explained: In Miranda [v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966)], the Supreme Court established a set of prophylactic rules to safeguard a suspect’s Fifth Amendment privilege against compulsory self-incrimination.

2019ANALYSIS In People v Kowalski, 230 Mich App 464, 472 ; 584 NW2d 613 (1998), this Court explained: In Miranda [v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966)], the Supreme Court established a set of prophylactic rules to safeguard a suspect’s Fifth Amendment privilege against compulsory self-incrimination.

2016The Court explained that “protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Id. at 500 . 5 However, in United States v Wong, 431 US 174, 179 ; 97 S Ct 1823 ; 52 L Ed 2d 231 (1977), the United States Supreme Court held that “the Fifth Amendment privilege does not protect perjury . . . .” Instead, “ [i] t grants a privilege to remain silent without risking con

2016The Court explained that “protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Id. at 500 . 5 However, in United States v Wong, 431 US 174, 179 ; 97 S Ct 1823 ; 52 L Ed 2d 231 (1977), the United States Supreme Court held that “the Fifth Amendment privilege does not protect perjury . . . .” Instead, “ [i] t grants a privilege to remain silent without risking con

2011The Fifth Amendment privilege protects an individual from being forced to answer any question that would “ ‘furnish a link in the chain of evidence needed to prosecute....’” Malloy, 378 US at 11 , quoting Hoffman v United States, 341 US 479, 486 ; 71 S Ct 814 ; 95 L Ed 1118 (1951). “ ‘To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ” Malloy, 378 US at 11-12 , quoting H

2011The Fifth Amendment privilege protects an individual from being forced to answer any question that would “ ‘furnish a link in the chain of evidence needed to prosecute....’” Malloy, 378 US at 11 , quoting Hoffman v United States, 341 US 479, 486 ; 71 S Ct 814 ; 95 L Ed 1118 (1951). “ ‘To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ” Malloy, 378 US at 11-12 , quoting H

1998Further, neither People v Giacalone, 399 Mich 642 ; 250 NW2d 492 (1977), nor People v Dyer, 425 Mich 572 ; 390 NW2d 645 (1986), in terms apply, because each involved the calling of a witness for the purpose of having the witness invoke a valid Fifth Amendment privilege.

1998Further, neither People v Giacalone, 399 Mich 642 ; 250 NW2d 492 (1977), nor People v Dyer, 425 Mich 572 ; 390 NW2d 645 (1986), in terms apply, because each involved the calling of a witness for the purpose of having the witness invoke a valid Fifth Amendment privilege.

2021The United States Supreme Court has held that the Fifth Amendment privilege against self-incrimination “protects an accused only from being compelled to testify against himself [or herself], or otherwise provide the State with evidence of a testimonial or communicative nature . . . .” Schmerber v California, 384 US 757, 761 ; 86 S Ct 1826 ; 16 L Ed 2d 908 (1966).

2021The United States Supreme Court has held that the Fifth Amendment privilege against self-incrimination “protects an accused only from being compelled to testify against himself [or herself], or otherwise provide the State with evidence of a testimonial or communicative nature . . . .” Schmerber v California, 384 US 757, 761 ; 86 S Ct 1826 ; 16 L Ed 2d 908 (1966).

2000Thus, the Spring Court must have been referring to waiver of the Miranda rights and not the Fifth Amendment privilege. [13] Cheatham was a majority opinion with the exception of part III, in which Justice Boyle, joined by Chief Justice Brickley and Justice Riley, discussed what she believed to be an inconsistency between the voluntary and knowing and intelligent prongs of the Miranda waiver analysis. [14] As the Supreme Court recognized in Connelly, supra at 170 , 107 S.Ct. 515 , "the Fifth Amendment privilege is not concerned `with moral and psychological pressures to confess emanating from s

2000Thus, the Spring Court must have been referring to waiver of the Miranda rights and not the Fifth Amendment privilege. [13] Cheatham was a majority opinion with the exception of part III, in which Justice Boyle, joined by Chief Justice Brickley and Justice Riley, discussed what she believed to be an inconsistency between the voluntary and knowing and intelligent prongs of the Miranda waiver analysis. [14] As the Supreme Court recognized in Connelly, supra at 170 , 107 S.Ct. 515 , "the Fifth Amendment privilege is not concerned `with moral and psychological pressures to confess emanating from s

2011The first question is whether the Fifth Amendment privilege against self-incrimination is applicable in this situation. 3 The Fifth Amendment operates not only in criminal trials, it also protects an individual from official questioning in “any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” People v Wyngaard, 462 Mich 659, 671-672 ; 614 NW2d 143 (2000) (quotation marks and citation omitted); see also Kastigar v United States, 406 US 441, 444 ; 92 S Ct 1653 ; 32 L Ed 2d 212 (1972) (stating that a witness may invo

2011The first question is whether the Fifth Amendment privilege against self-incrimination is applicable in this situation. 3 The Fifth Amendment operates not only in criminal trials, it also protects an individual from official questioning in “any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” People v Wyngaard, 462 Mich 659, 671-672 ; 614 NW2d 143 (2000) (quotation marks and citation omitted); see also Kastigar v United States, 406 US 441, 444 ; 92 S Ct 1653 ; 32 L Ed 2d 212 (1972) (stating that a witness may invo

2017At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. [Citations omitted.] “If the police continue to ‘interrogate’ the defendant after he has invoked his right to remain silent, and the defendant confesses as a result of that ‘interrogation,’ the confession is inadmissible.” White, 493 Mich at 194 (citation omitted).

2017At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. [Citations omitted.] “If the police continue to ‘interrogate’ the defendant after he has invoked his right to remain silent, and the defendant confesses as a result of that ‘interrogation,’ the confession is inadmissible.” White, 493 Mich at 194 (citation omitted).

2026The privilege “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’” People v Wyngaard, 462 Mich 659, 671-672 ; 614 NW2d 143 (2000), quoting Minnesota v Murphy, 465 US 420, 426 ; 104 S Ct 1136 ; 79 L Ed 2d 409 (1984). “[T]his Court recognize[s] two interrelated requirements for a Fifth Amendment violation: compulsion, i.e., evidence t

2026The privilege “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’” People v Wyngaard, 462 Mich 659, 671-672 ; 614 NW2d 143 (2000), quoting Minnesota v Murphy, 465 US 420, 426 ; 104 S Ct 1136 ; 79 L Ed 2d 409 (1984). “[T]his Court recognize[s] two interrelated requirements for a Fifth Amendment violation: compulsion, i.e., evidence t

1978If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.’ ” Michigan v Mosley, supra, at 101, n 7, quoting Miranda v Arizona, supra, at 474 .

1978If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.’ ” Michigan v Mosley, supra, at 101, n 7, quoting Miranda v Arizona, supra, at 474 .

2026To protect a defendant’s Fifth Amendment privilege against self-incrimination, custodial interrogation must be preceded by advice to the accused that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” [People v Cortez, 299 Mich App 679, 691 ; 832 NW2d 1 (2013), quoting Miranda, 384 US at 444 .] “Statements made by a defendant to the police during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and intelligently waiv

2026To protect a defendant’s Fifth Amendment privilege against self-incrimination, custodial interrogation must be preceded by advice to the accused that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” [People v Cortez, 299 Mich App 679, 691 ; 832 NW2d 1 (2013), quoting Miranda, 384 US at 444 .] “Statements made by a defendant to the police during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and intelligently waiv

2026Because defendant does not brief the issue, it is unknown if she claims that the probate court violated her Fifth Amendment privilege against self-incrimination, see Phillips v Deihm, 213 Mich App 389 , 399- 400; 541 NW2d 566 (1995), or if defendant simply challenges whether the answers were in an admissible form to support plaintiff’s dispositive motion.

2026Because defendant does not brief the issue, it is unknown if she claims that the probate court violated her Fifth Amendment privilege against self-incrimination, see Phillips v Deihm, 213 Mich App 389 , 399- 400; 541 NW2d 566 (1995), or if defendant simply challenges whether the answers were in an admissible form to support plaintiff’s dispositive motion.

2026The privilege “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’” People v Wyngaard, 462 Mich 659, 671-672 ; 614 NW2d 143 (2000), quoting Minnesota v Murphy, 465 US 420, 426 ; 104 S Ct 1136 ; 79 L Ed 2d 409 (1984). “[T]his Court recognize[s] two interrelated requirements for a Fifth Amendment violation: compulsion, i.e., evidence t

2026The privilege “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’” People v Wyngaard, 462 Mich 659, 671-672 ; 614 NW2d 143 (2000), quoting Minnesota v Murphy, 465 US 420, 426 ; 104 S Ct 1136 ; 79 L Ed 2d 409 (1984). “[T]his Court recognize[s] two interrelated requirements for a Fifth Amendment violation: compulsion, i.e., evidence t

2025This Court “recogniz[ed] that [a] defendant retains his Fifth Amendment privilege against self-incrimination,” but noted that “it remains the case that the privilege cannot be selectively asserted in an effort to control what narrative or information is available to a court and the prosecutor.” Id. at ___; slip op at 7.

2013Indeed, if the application of Dr. Grigson’s findings had been confined to serving that function, no Fifth Amendment issue would have arisen. [Estelle, 451 US at 465 (citation omitted).] 27 Court of Appeals correctly concluded that the Fifth Amendment privilege was implicated. * * * A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used again him at a capital sentencing proceeding. . . . . . . [U]nder Miranda v Arizona, we must conclude that, when fac

2016The Court explained that “protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Id. at 500 . 5 However, in United States v Wong, 431 US 174, 179 ; 97 S Ct 1823 ; 52 L Ed 2d 231 (1977), the United States Supreme Court held that “the Fifth Amendment privilege does not protect perjury . . . .” Instead, “ [i] t grants a privilege to remain silent without risking con

2016The Court explained that “protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Id. at 500 . 5 However, in United States v Wong, 431 US 174, 179 ; 97 S Ct 1823 ; 52 L Ed 2d 231 (1977), the United States Supreme Court held that “the Fifth Amendment privilege does not protect perjury . . . .” Instead, “ [i] t grants a privilege to remain silent without risking con

2013See, e.g., id. at 241 n 2 (Stevens, J., concurring) (“[T]here is a serious question about the continuing vitality of Raffel.’’); id. at 245 n 10 (“It strikes me as anomalous that, assuming Raffel has survived Doyle , a defendant who takes the stand is deemed to waive his Fifth Amendment objection to the use of his pretrial silence, but not to waive what I regard as a much less focused, and hence weaker, due process objection.

2013See, e.g., id. at 241 n 2 (Stevens, J., concurring) (“[T]here is a serious question about the continuing vitality of Raffel.’’); id. at 245 n 10 (“It strikes me as anomalous that, assuming Raffel has survived Doyle , a defendant who takes the stand is deemed to waive his Fifth Amendment objection to the use of his pretrial silence, but not to waive what I regard as a much less focused, and hence weaker, due process objection.