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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 30, 2001
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v	 No. 116710
 

ABRAHAM SAFFOLD,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH 


WEAVER, J.
 

The question presented is whether the trial court’s
 

failure to comply with MCR 6.302(B)(3)(c) in accepting
 

defendant’s guilty plea to one count of receiving and
 

concealing stolen property and fourth felony offender demands
 

reversal of defendant’s conviction. This undertaking is one
 

where we, as our predecessor courts have done for over a
 
quarter century, are interpreting and applying our own rules
 

concerning guilty pleas. MCR 6.302(B)(3)(c) requires the
 

trial court to inform the defendant that he waived his right
 

at trial to be presumed innocent until proven guilty. Here,
 

the trial court did not inform defendant of the presumption of
 

innocence during the guilty plea hearing. However, earlier in
 

the day defendant was present while the same judge instructed
 

the jury that convened for defendant’s trial—on the charge to
 

which he subsequently pleaded guilty—that the defendant was
 

presumed innocent until proven guilty beyond a reasonable
 

doubt. In light of the Guilty Plea Cases, 395 Mich 96; 235
 

NW2d 132 (1975), the question is whether there was
 

substantial, not strict, compliance with the requirements of
 

MCR 6.302. 


Despite the trial court’s omission of the presumption of
 

innocence during the plea hearing, we hold that defendant “was
 

informed of such constitutional rights and incidents of a
 

trial as reasonable to warrant the conclusion that he
 

understood what a trial is and that by pleading guilty he was
 

knowingly and voluntarily giving up his right to a trial and
 

such rights and incidents.” Guilty Plea Cases, supra, p 122.
 

We reverse the Court of Appeals decision and reinstate
 

defendant’s plea of guilty. 


2
 
I
 

Jury selection for defendant’s trial1 began on the
 

morning of April 13, 1998. In the afternoon of the first day
 

of trial, after the first witness testified, the defendant
 

decided to accept the prosecutor’s plea bargain offer.
 

Pursuant to that offer defendant pleaded guilty to one count
 

of receiving and concealing stolen property, MCL 750. 535, and
 

to being a fourth felony offender, MCL 769.12. The trial
 

judge engaged in a lengthy hearing with defendant on his
 

guilty plea.2

 However, during that hearing the trial judge
 

did not inform defendant that by pleading guilty he was giving
 

up the right to be presumed innocent until proven guilty.3 On
 

July 17, 1998, defendant was sentenced as an habitual
 

offender, fourth offense, to a prison term of twelve to forty
 

years. 


On December 14, 1998, defendant moved to withdraw his
 

plea on the ground that the trial court failed to inform him
 

1Defendant was charged with five counts: 1) home


invasion, second degree, MCL 750.110a(3), 2) home invasion,


second degree, MCL 750.110a(3), 3) receiving and concealing


weapons or firearms, MCL 750.535b, 4) receiving and concealing


stolen property in excess of $100, MCL 750. 535, and 5)


receiving and concealing stolen property in excess of $100,


MCL 750. 535.
 

2The transcript for the hearing totals thirty-one pages.
 

3 MCR 6.302(B)(3)(c).
 

3
 
of the presumption of innocence. After a hearing on
 

January 25, 1999, the trial court denied the motion. On March
 

28, 2000, the Court of Appeals issued a memorandum opinion4
 

reversing the trial court’s denial of defendant’s motion to
 

withdraw his guilty plea. The prosecution appealed to this
 

Court, and we granted leave to appeal. 463 Mich 906 (2000).5
 

II
 

The procedures governing the acceptance of a guilty plea
 

were first adopted by this Court in 19736

 and are currently
 

set forth in MCR 6.302. MCR 6.302(A) provides that 


[t]he court may not accept a plea of guilty or nolo


contendere unless it is convinced that the plea is


understanding, voluntary, and accurate. Before
 

accepting a plea of guilty or nolo contendere, the


court must place the defendant under oath and


personally carry out subrules (B)—(E).
 

In People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), this
 

Court had held that “strict adherence to those requirements7
 

is mandatory and that neither substantial compliance nor the
 

4Unpublished memorandum opinion, issued March 28, 2000


(Docket No. 217802).
 

5 In granting leave, we directed the parties to “include


discussion of whether the alleged error is subject to harmless


error review and, if so, what is the appropriate harmless


error standard in this case.” Because we hold that the trial
 

court substantially complied with the requirements for taking


a plea, we do not reach the question of harmless error. 


6389 Mich lv-lvii
 

7At that time, the requirements, which were substantially


similar to those of MCR 6.302, were found in GCR 1963, 785.7.
 

4
 
absence of prejudicial error will be deemed sufficient.”
 

However, one year later in Guilty Plea Cases, supra, this
 

Court renounced the Shekoski holding that “any failure of
 

strict adherence to the procedure and practice specified in
 

Rule 785.7 [now MCR 6.302] mandates reversal.” Guilty Plea
 

Cases, supra, p 113. Instead, the Court adopted a doctrine of
 

substantial compliance, holding that “[w]hether a particular
 

departure from Rule 785.7 justifies or requires reversal or
 

remand for additional proceedings will depend on the nature of
 

the noncompliance.” Guilty Plea Cases, supra at 113. Thus,
 

the question on appeal is whether it appears on the record
 

that the defendant was informed of such constitutional rights
 

and incidents of a trial as is reasonable to warrant the
 

conclusion that he understood what a trial is and that by
 

pleading guilty he was knowingly and voluntarily giving up his
 

right to a trial and such rights and incidents. Id. at 113,
 

122.
 

To determine if there was substantial compliance with the
 

court rule, the first question is whether the right omitted or
 

misstated is a “Jaworski right.” In People v Jaworski, 387
 

Mich 21; 194 NW2d 868 (1972), this Court held that a plea of
 

guilty must be set aside where the record of the plea
 

proceedings shows that the defendant was not advised of all
 

three constitutional rights involved in a waiver of a guilty
 

5
 
plea: 1) the right to trial by jury, 2) the right to confront
 

one’s accusers, and 3) the privilege against selfincrimination, relying on Boykin v Alabama, 395 US 238; 89
 

S Ct 1709; 23 L Ed 2d 274 (1969). If a Jaworski right is
 

omitted from the plea proceedings, then reversal is mandated.
 

However, the omission from the plea proceedings of one or
 

another of the rights attendant to a trial, other than a
 

Jaworski right, or the imprecise recital of any such right,
 

including a Jaworski right, does not necessarily require
 

reversal. Guilty Plea Cases, supra, p 122.
 

Here, the trial court failed to inform the defendant of
 

the presumption of innocence. Informing defendant of his
 

right to be presumed innocent is required under MCR
 

6.302(B)(3)(c)8

, but is not one of the three Jaworski rights.
 

We note that in some cases the Court of Appeals has stated or
 

assumed that the presumption of innocence had the same status
 

as the three Jaworski rights—that its omission mandates an
 

automatic reversal. See People v Russell, 73 Mich App 628,
 

629-630; 252 NW2d 533 (1977), and People v Bender, 124 Mich
 

App 571; 335 NW2d 85 (1983). In other cases, this Court and
 

the Court of Appeals have reversed a guilty plea, without
 

8MCR 6.302(B)(3)(c) requires the court to advise the


defendant and determine that the defendant understands that if
 

his plea is accepted the defendant will not have a trial and


gives up the rights he would have had at trial, including the


right “to be presumed innocent until proven guilty.” 


6
 
 

engaging in further analysis, when the trial court omitted the
 

presumption of innocence. See People v Lawrence, 413 Mich
 

866; 317 NW2d 856 (1982)9, People v Mitchell, 125 Mich App
 

475; 336 NW2d 31 (1983), and People v Heintzelman, 142 Mich
 

App 94; 368 NW2d 903 (1985).10 To the extent that these cases
 

9 The order in Lawrence, read, in its entirety:
 

On order of the Court, the defendant having


filed a request for review of his conviction, this


Court having issued an order to show cause why the


defendant’s conviction should not be reversed
 

because he was not advised of the presumption of


innocence as required by GCR 1963,


785.7(1)(g)(iii), and the prosecutor’s response to


that order having been considered by the Court,


now, therefore, it is ordered that the request for


review be treated as an application for leave to


appeal and, pursuant to GCR 1963, 853.2(4), in lieu


of granting leave to appeal, we reverse the
 

defendant’s convictions because he was not advised
 

of the presumption of innocence. GCR 1963,


785.7(1)(g)(iii); Guilty Plea Cases, 395 Mich 96,


125; 235 NW2d 132 (1975). We remand the cases to
 

the Washtenaw Circuit Court for further
 

proceedings. 


10 The dissent relies on the above-cited cases to assert
 

that this Court has established a precedent that where a


defendant is not informed of his right to be presumed


innocent, his conviction must be set aside, and that the Court


of Appeals has “followed this established precedent.” Slip op
 

at 8. We would note that in Russell, supra, the Court of
 

Appeals affirmed the defendant’s conviction despite the trial


court’s failure to “[speak] the precise words ‘presumed


innocent’.” 73 Mich App 631. In People v Jackson, 71 Mich
 

App 468; 248 NW2d 551 (1976), the Court of Appeals affirmed


the defendant’s conviction where, although he was not informed


of his right to be presumed innocent at the guilty plea


proceeding, he was informed of that right in a prior guilty


plea entered the preceding day before the same judge. Id. at
 

469-470.
 

(continued...)
 

7 
 

10(...continued)
 

We futher note that the decision of the Court of Appeals
 

in People v Ingram, 166 Mich App 433; 424 NW2d 19 (1988), did


not involve a failure to advise, but rather an imprecise


recital of the right to be presumed innocent. The trial court
 

stated that the defendant would be “presumed innocent of this


offense until proved guilty beyond a reasonable doubt.” The
 

Court of Appeals affirmed the defendant’s guilty plea, finding


that “[i]t appears on the record that defendant was
 

sufficiently informed of his constitutional rights and the


incidents of trial to warrant a conclusion that he understood
 

what a trial is and that by tendering his plea he was


knowingly and intelligently giving up his right to a trial and


its consequent rights and protections.” Id. at 437-438.
 

In Heintzelman, supra, Mitchell, supra, and People v
 

Wilson, 78 Mich App 307; 259 NW2d 356 (1977), the Court of


Appeals reversed the defendants’ convictions where there was


a total absence of advice concerning the presumption of
 

innocence.
 

Finally, in Bender, supra, the defendant pleaded guilty


to an habitual offender charge after being tried and found


guilty by a jury on the accompanying substantive offenses.


The Court of Appeals observed that defendant was informed of


a number of his rights through the statement of those rights


by his counsel when the defendant expressed a desire to plead


guilty to the habitual charge while the jury was still
 

deliberating on the substantive charges. The Court of Appeals
 

stated: “Although defendant was not personally advised of a


number of his rights by the trial court, defense counsel’s onthe-record statement of some of defendant’s rights satisfies


the requirement that the trial court ‘personally address’ the


defendant as to those rights. . . . As long as defendant is


orally informed in open court of his rights and the trial


court can personally observe defendant’s demeanor and
 

responses, the purpose of the personally address requirement


is achieved. . . . Nor is it fatal to the plea that defendant


was informed of his rights before the jury returned a guilty


verdict on the principal charge.” Id. at 577 (citations
 

omitted). Thus, the decision of the Court of Appeals in


Bender supports this Court’s analysis in the present case in


determining that the recital of a right in open court at a


time other than the actual plea proceeding is sufficient to


(continued...)
 

8 
 

held that the omission of the presumption of innocence from a
 

guilty plea proceedings requires an automatic reversal of the
 

guilty plea, we disapprove of them.11
 

In Guilty Plea Cases, we did recognize that the
 

presumption of innocence is “at the core of our criminal
 

process and fundamental to defendant’s understanding of a
 

trial.” Id. at 125. Nevertheless, the omission from a plea
 

proceeding of a right attendant to trial, other than a
 

Jaworski right, does not necessarily require reversal. Id. at
 

122. If from the record it appears that the defendant has
 

10(...continued)


satisfy the “personally address” requirement; the Court


vacated the guilty plea only because there was a total absence
 

of advice concerning the presumption of innocence. We note,


of course, that under current practice, a defendant does not


plead guilty to an habitual supplementation.
 

Therefore, while we agree with the dissent’s view that


“[t]his line of precedent firmly establishes [that a complete


failure] to advise [a] defendant of his right to be presumed


innocent” will continue to result in reversal of a defendant’s
 

guilty plea, we conclude that the above precedent does not


stand for the ultimate proposition urged by the dissent: that
 

advise concerning the presumption of innocence delivered at an


in-court proceeding close in time to the guilty plea


proceeding is insufficient compliance with the court rule. In
 

our view, the above precedent fully supports our conclusion in


this case that the advice imparted earlier in the case by the


trial court was sufficient compliance with MCR 6.302(B).
 

11We continue to emphasize the point we made in People v
 

Williams, 386 Mich 277; 192 NW2d 466 (1971), and Jaworski,


supra, that it is important for the trial court to make a full


and complete record of protecting all the defendant’s rights.


Although the trial court’s plea hearing with defendant in this


case was otherwise exemplary, the inadvertent omission of one


sentence gave rise to three years of appellate review. 


9
 
been informed of his right to a trial and that this right is
 

being waived by his plea of guilty, reversal is not required
 

by the omission of any of the rights enumerated in the Court
 

rule, even the presumption of innocence. Id. 


Here, defendant was not informed of the presumption of
 

innocence during the plea hearing. However earlier in the
 

day, while defendant was present, the same judge had given the
 

defendant’s jury, which was empaneled on the same charge to
 

which defendant pleaded guilty, a thorough explanation of the
 

presumption of innocence,12 stating: 


A person accused of a crime is presumed to be


innocent. This means that you must start with the


presumption that the defendant is innocent. This
 

presumption continues throughout the trial, and


entitles the defendant to a verdict of not guilty


unless you find from the evidence beyond a
 

reasonable doubt that he is. 


Every crime is made up of parts called
 

elements. The prosecutor must prove each element


of the crime beyond a reasonable doubt. 


The defendant is not required to prove his


innocence or to do anything. 


12 Although we reversed in the Howell case for failure to
 

impart the presumption of innocence information, Guilty Plea
 

Cases, supra at 125, nothing in the opinion suggests that such


information was supplied by the judge, or any other
 

participant, at another stage of the proceedings. In other
 

words, Howell represents a complete failure to impart the


presumption of innocence information—not an “alternative”


impartation of the information as in this case. The same is
 

true of our summary order in People v Lawrence, 413 Mich 866
 

(1982).
 

10
 
Should you find that the prosecutor has not


proven every element beyond a reasonable doubt,


then you must find the defendant not guilty. 


A reasonable doubt is defined as a fair,


honest doubt growing out of the lack of evidence or


the evidence in the case. It is, however, not an


imaginary or a possible doubt. Instead, it is a


doubt based upon reason, and common sense. It is a
 

doubt which is considered reasonable after a
 

careful and considered examination of all the facts
 

and circumstances in the case. 


Before defendant pleaded guilty, his trial on the charge to
 

which he pleaded guilty had begun. Defendant had participated
 

in having his constitutional rights to a trial by jury
 

implemented, and specifically had witnessed the jury being
 

informed of the presumption of innocence to which he was
 

entitled. 


In Guilty Plea Cases, supra at 114-115, we approved cases
 

where the trial judge did not personally address the defendant
 

by informing him of the maximum sentence (Courtney) or the
 

charge that the defendant was facing (Bauer). We concluded
 

that the prosecutor’s statement of that information in the
 

presence of the defendants was sufficient. We stated:
 

These departures do not justify reversal.


While it would be better for the judge to cover all


the points himself, as long as he assumes the
 

principal burden of imparting the required


information, as did the judges in Courtney and
 

Bauer, the purpose of requiring him personally to


address the defendant and in so doing observe his


demeanor and responses is achieved.
 

A guilty plea conviction will not be reversed


if the judge engages in the required colloquy but
 

11
 
fails to mention an item which the record shows was
 

established through, for example, an opening


statement of or interjection by the prosecutor or


defense counsel in the hearing of the judge and
 

defendant. It is proper for the prosecutor or the


clerk to read the information in the judge’s
 

presence. [Emphasis supplied.]
 

Here, the trial judge addressed defendant with respect to
 

every right contained in the court rules save one. That
 

failure was rectified by the judge’s earlier statement, in
 

defendant’s presence, that informed the jury—and defendant–at
 

length concerning the presumption of innocence. Thus, the
 

judge clearly assumed “the principal burden of imparting the
 

required information,” id. at 114. 


In Courtney and Bauer, this Court approved the practice
 

of some of the required information being imparted by the
 

prosecutor—or, indeed, as we stated later, by “an opening
 

statement of or interjection by the prosecutor or defense
 

counsel in the hearing of the judge and defendant.” Id. at
 

114-115. In such situations the reviewing court will rely on
 

the defendant’s presence when the information regarding the
 

presumption of innocence is imparted to conclude that the
 

defendant is aware of that information and that, therefore,
 

his plea is knowing and understanding.13 The clear import of
 

13As indicated by the court rules themselves, and also by


this Court’s discussion in Guilty Plea Cases, supra at 126­

128, the voluntariness of a defendant’s guilty plea is


determined by his awareness of whether there have been any


(continued...)
 

12
 
our statements in Guilty Plea Cases is that observing the
 

demeanor and responses of the defendant when advice regarding
 

the “bulk” of the rights is imparted is sufficient to
 

establish compliance with the “personally address”
 

requirement.14
 

In contrast to the situations already approved by us in
 

the Courtney and Bauer cases, in this case it was the judge
 

who imparted the additional information. Thus, we conclude
 

that “the purpose of requiring [the judge] to personally
 

address the defendant and in so doing observe his demeanor and
 

responses [has been] achieved.” Id. at 114.
 

III
 

Apparently the dissent agrees with us on the legal
 

principles involved. Both opinions recognize that the
 

defendant’s plea must constitute a knowing and intelligent
 

waiver of the defendant’s rights. We also agree that reversal
 

of defendant’s conviction is not required if there is
 

13(...continued)


plea or sentence agreements, whether he has been threatened or


otherwise coerced into pleading guilty, and whether it is his


own choice to plead guilty, MCR 6.302(C), not by whether he


has received the information concerning his trial rights.
 

14There is nothing in the Guilty Plea Cases opinion from
 

which we could conclude that the trial judges in Courtney and
 

Bauer were observing the defendants’ demeanors when the


prosecutors imparted the “missing” information, and, of


course, the defendants would not have made any response to


statements by the prosecutors.
 

13
 
substantial compliance with the court rule. 


The point of difference between the majority and the
 

dissent is in the dissent’s application of the concept of
 

“substantial compliance”. The majority abides by the
 

interpretation of our rules set forth in Guilty Plea Cases
 

that has held sway for over twenty-five years: there is
 

substantial compliance with the “personally address”
 

requirement if, even though the judge fails to recite a
 

specific right at the guilty plea proceeding, the omission is
 

rectified by recitation of the right in the defendant’s
 

presence at some other point during the in-court proceedings.
 

The dissent apparently would require strict compliance with
 

MCR 6.302(B)(3)(c), and mandate reversal whenever the
 

defendant was not instructed on the presumption of innocence
 

at the guilty plea hearing itself. In so doing, the dissent
 

would sub silentio overrule Guilty Plea Cases, and return to
 

the strict compliance rule of People v Shekoski. We believe
 

that the crucial question is whether the defendant’s plea was
 

knowing and voluntary, not whether the trial court has
 

engaged in a letter-perfect “talismanic chant.”15 Under the
 

court rule, a failure to state one of the rights at the plea
 

hearing does not require vacating the conviction where, as
 

15People v Willsie, 96 Mich App 350, 353; 292 NW2d 145


(1980). 


14
 
here, the court has directly addressed the defendant regarding
 

the enumerated rights generally and the defendant has
 

otherwise been informed adequately of the omitted right. The
 

dissent has not identified any basis in the rule to support
 

its contrary position. Thus, we decline the dissent’s
 

invitation to turn our backs on established precedent and reinterpret “substantial compliance” to require strict
 

compliance at the time of the plea-taking.


 Finally, the dissent suggests that the presumption of
 

innocence has the same status as the three Jaworski
 

rights—that its omission mandates an automatic reversal. In
 

Jaworski this Court held that in order for there to be a valid
 

guilty plea, there must be an enumeration and a waiver on the
 

record of the three federal constitutional rights as set forth
 

in Boykin v Alabama, supra: the privilege against compulsory
 

self-incrimination, the right to trial by jury, and the right
 

to confront one’s accusers. The United States Supreme Court
 

has not held that the presumption of innocence is such a
 

right. See Johnson v Ohio, 419 US 924, 925; 95 S Ct 200; 42
 

L Ed 2d 158 (1974). Although we continue to recognize the
 

importance of the presumption of innocence, we decline to
 

elevate it to the status of the Boykin/Jaworski rights. 


IV
 

On the basis of the whole record, including the beginning
 

15
 
of the jury trial earlier that same day, we find that the
 

trial judge’s initial determination that the defendant
 

knowingly and voluntarily gave up his right to a trial and all
 

the attendant rights was correct. 


We reverse the judgment of the Court of Appeals vacating
 

defendant’s guilty plea, and reinstate defendant’s conviction
 

and sentence.
 

CORRIGAN, C.J., and TAYLOR and YOUNG, JJ., concurred with
 

WEAVER, J.
 

16
 
 

____________________________________ 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

PEOPLE OF THE STATE OF THE MICHIGAN,
 

Plaintiff-Appellant,
 

v No. 116710 


ABRAHAM SAFFOLD,
 

Defendant-Appellee.
 

YOUNG, J. (concurring).
 

I join in the majority opinion and fully concur that an
 

omission from the plea proceedings of one or another of the
 

rights attendant to trial, other than a Jaworski right, does
 

not necessarily require reversal. However, I write separately
 

because I wish to clarify that, in my view, there was no
 

omission of the “presumption of innocence,” and thus, no error
 

under MCR 6.302(B)(3)(c) occurred in this case. 


The trial court, during the plea proceeding, advised
 

defendant that he had a right to a trial by jury and that he
 

had a right to have his guilt proven beyond a reasonable
 

doubt. Specifically, the trial judge directly said the
 

following to defendant:
 

The Court: You obviously know what a jury
 

trial is. You’ve been sitting here during jury
 
selection, and you’ve seen witnesses testify so you


understand that you’re here because you have the


right to be here. Meaning you have the right to


have this trial, and you have the right to have the
 

jury decide the facts, and decide whether or not
 

your guilt is proven beyond a reasonable doubt.
 

And you’ve seen cross-examination so you understand


you have the right to see, hear and cross-examine


the State’s witnesses. Am I correct in inferring


that? [Emphasis added].
 

* * *
 

The Court: Do you understand that you give up


those rights, and give up the right to a trial if


you change your plea to guilty? 


In my view, advising defendant that he had a right to
 

have his guilt proven beyond a reasonable doubt necessarily
 

encompassed the advice that he would have been presumed
 

innocent. The presumption of innocence is “nothing more than
 

an amplification of the prosecution’s burden of persuasion.”
 

See 2 McCormick, Evidence (5th ed), § 342, p 437. If the
 

presumption of innocence adds anything, it is merely “a
 

warning not to treat certain things improperly as evidence.”
 

9 Wigmore, Evidence (3d ed), § 2511, p 409. 


The court did not recite literally the court rule
 

terminology. However, when defendant was told that he had a
 

right to have his guilt proven beyond a reasonable doubt, he
 

necessarily learned that he would be considered innocent in
 

the absence of such proof of his guilt. In my view, this
 

advice adequately informed defendant of the “presumption of
 

innocence.” No single method of recital is required. Guilty
 

2
 
Plea Cases, 395 Mich 96, 119-120; 235 NW2d 132 (1975). 


I believe that the phrase “presumption of innocence” is
 

merely a shorthand way of referring to the right to have a
 

jury find a defendant guilty beyond a reasonable doubt.
 

Accordingly, I believe defendant was in fact informed of the
 

“presumption of innocence” and that no omission of advice as
 

required by the rule occurred in this case.
 

CORRIGAN, C.J., concurred with YOUNG, J.
 

3
 
______________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

No. 116710
 

ABRAHAM SAFFOLD,
 

Defendant-Appellee.
 

MARKMAN, J. (dissenting).
 

I respectfully dissent. The issue before this Court is
 

whether the trial court’s failure to comply with MCR 6.302 in
 

accepting defendant’s guilty plea (to a charge of receiving
 

and concealing stolen property) requires the reversal of his
 

conviction.1 Contrary to the requirement of MCR 6.302, the
 

1 MCR 6.302, in pertinent part, provides:


(A) Plea Requirements. The court may not


accept a plea of guilty or nolo contendere unless


it is convinced that the plea is understanding,


voluntary, and accurate. Before accepting a plea


of guilty or nolo contendere, the court must place


the defendant under oath and personally carry out


subrules (B)–(E).
 

(B) An Understanding Plea. Speaking directly
 

to the defendant, the court must advise the
 

defendant and determine that the defendant 

understands: 

(continued...) 
 

 

trial court failed to inform the defendant, at his guilty plea
 

hearing, of his right to be presumed innocent. The trial
 

court denied defendant’s motion to withdraw his guilty plea on
 

this ground. The Court of Appeals subsequently reversed,
 

asserting that the rule required the trial court “to directly
 

advise a defendant of the presumption of innocence on the
 

record before accepting a guilty plea.” Unpublished
 

memorandum opinion, issued March 28, 2000 (Docket No. 217802),
 

at 2. 


I. PURPOSE AND GOAL OF GUILTY PLEA HEARING
 

The primary purpose of MCR 6.302’s mandate that the
 

defendant be personally addressed with the required statements
 

is grounded in the principle that the defendant’s plea must
 

constitute a “knowing and intelligent” waiver of his
 

constitutional rights. McCarthy v United States, 394 US 459,
 

465; 89 S Ct 1166; 22 L Ed 2d 418 (1969). To that end, the
 

rule: (1) provides the court accepting the guilty plea the
 

opportunity to observe the defendant’s demeanor and the manner
 

1(...continued)
 

* * *
 

(3) if the plea is accepted, the defendant


will not have a trial of any kind, and so gives up


the rights the defendant would have at a trial,


including the right:
 

* * *
 

(c) to be presumed innocent until proved


guilty . . . . [Emphasis added.]
 

2
 
 

 

 

in which he responds to the court’s statements and questions;
 

(2) impresses upon the defendant the full gravity and import
 

of his plea, and that, in so pleading, he waives the right to
 

a trial and all of his other related constitutional rights;2
 

and (3) creates a record of factors relevant to ascertaining
 

the voluntariness of defendant’s plea.3 People v Napier, 69
 

Mich App 46, 48; 244 NW2d 359 (1976), see also Guilty Plea
 

Cases, 395 Mich 96, 122; 235 NW2d 132 (1975). 


II. PRESUMPTION OF INNOCENCE
 

The principle of the presumption of innocence is an
 

essential foundation of our adversarial system of criminal
 

justice. In re Winship, 397 US 358, 363; 90 S Ct 1068; 25 L
 

2 McCarthy, supra at 465. See also McMann v Richardson,


397 US 759, 774; 90 S Ct 1441; 25 L Ed 2d 763 (1970); North
 

Carolina v Alford, 400 US 25, 31; 91 S Ct 160; 27 L Ed 2d 162


(1970) (stating that a voluntary plea is one made with


knowledge of fundamental constitutional rights and an
 

understanding of the nature of the crimes charged); People v
 

Siebert, 450 Mich 500, 511-515; 537 NW2d 891 (1995); People v
 

Thew, 201 Mich App 78, 95; 506 NW2d 547 (1993), citing Brady
 

v United States, 397 US 742, 747-748; 90 S Ct 1463; 25 L Ed 2d


747 (1970) (stating that “a guilty plea is the most serious


step a defendant can take in a criminal prosecution [and]


[f]or that reason, the plea ‘not only must be voluntary but


must be [a] knowing, intelligent ac[t] done with sufficient


awareness of the relevant circumstances and likely


consequences.’”).
 

3 An equally important, albeit more pragmatic, reason


for requiring an on-the-record recitation of defendant’s


rights is to avoid, or at least discourage, numerous and


sometimes frivolous post conviction attacks on the
 

constitutional validity of the plea. See Orfield, Pleas in
 

federal criminal procedure, 35 Notre Dame Lawyer 1, 31-32
 

(1959); Hoffman, What next in federal criminal rules? 21 Wash
 

& Lee L R 1, 8 (1964).
 

3
 
Ed 2d 368 (1970), see also Coffin v United States, 156 US 432,
 

453; 15 S Ct 394; 39 L Ed 481 (1895). The presumption of
 

innocence is “the undoubted law, axiomatic and elementary, and
 

its enforcement lies at the foundation of the administration
 

of our criminal law.” Coffin, supra at 453.4 “The accused
 

during a criminal prosecution has at stake interest of immense
 

importance, both because of the possibility that he may lose
 

his liberty upon conviction and because of the certainty that
 

he would be stigmatized by the conviction.” Id. 


A guilty plea constitutes a waiver of the fundamental
 

right to a jury trial. Parke v Raley, 506 US 20, 29; 113 S Ct
 

517; 121 L Ed 2d 391 (1992). It is because of the waiver of
 

4

 “One of the rightful boasts of Western civilization is


that the (prosecution) has the burden of establishing guilt


solely on the basis of evidence produced in court and under


circumstances assuring an accused all the safeguards of a fair


procedure. Irvin v Dowd, 366 US 717, 729; 81 S Ct 1639; 6 L


Ed 2d 751 (1961) (Frankfurter, J., concurring). One of these
 

safeguards is the presumption of innocence. See also Abraham,


The Judicial Process (7th ed), pp 104-105, stating:
 

It is a cornerstone of Anglo-Saxon justice


that an accused is presumed innocent unless and


until proved guilty beyond a reasonable doubt.


Few, if any, concepts are more deeply rooted in our


traditions. . . . The layperson may quite


naturally be quick to adjudge an accused guilty in


his or her own mind and be sometimes joined by the


press, particularly in America, but the Anglo-Saxon


legal profession on both sides of the Atlantic


Ocean, and throughout the English-speaking world,


has done its best to adhere to the time-honored
 

principle that an accused person is presumed to be


innocent until proved otherwise beyond a reasonable


doubt by due process of law. 


4
 
 

these rights and because a guilty plea is itself effectively
 

a self-imposed conviction, that the process “demands the
 

utmost solicitude of which courts are capable in canvassing
 

the matter with the accused to make sure he has a full
 

understanding of what the plea connotes and of its
 

consequence.” Boykin v Alabama, 395 US 238, 243-244; 89 S Ct
 

1709; 23 L Ed 2d 274 (1969). It is with this principle in
 

mind that a court must review a guilty plea and determine
 

whether the accused has been informed of all the rights that
 

he is waiving.
 

III. MCR 6.302
 

MCR 6.302 states that the defendant is entitled during
 

the guilty plea hearing to a direct and explicit statement
 

from the court concerning the rights set forth in the rule.
 

It is expressly required that the court “speak[] directly to”
 

the defendant, and that the court “must advise” the defendant
 

and “determine that the defendant understands” that he has the
 

right to be presumed innocent until proved guilty. MCR 6.302.
 

Clearly, the omission in this case was more than merely
 

an imprecise recital of the rights to which defendant was
 

entitled and which he was surrendering by virtue of his plea.
 

See People v Russell, 73 Mich App 628, 631; 252 NW2d 533
 

(1977), asserting that “[t]he determinative question . . . is
 

whether the trial judge omitted advice on that subject or
 

merely gave an imprecise recital.” The flaw in procedure in
 

5
 
 

 

the instant case was not that the wrong formulation or the
 

wrong articulation of defendant’s rights was provided, but
 

rather that no formulation and no articulation were provided.
 

As the majority recognizes, I agree that substantial
 

compliance with MCR 6.302, with regard to the right to be
 

presumed innocent, is all that is required. However, the
 

question in the instant case is whether there was any
 

compliance with the rule. I can only answer this in the
 

negative because the statement required by the rule was not
 

made, precisely or imprecisely, perfectly or imperfectly, at
 

the guilty plea hearing.
 

IV. ANALYSIS OF THE MAJORITY OPINION
 

The majority cites the Guilty Plea Cases, 395 Mich 96,
 

113; 235 NW2d 132 (1975), and states that “[w]hether a
 

particular departure from [the rule] justifies or requires
 

reversal or remand for additional proceedings will depend on
 

the nature of the noncompliance.” Slip op at 5. The majority
 

then asserts that the inquiry on appeal “is whether it appears
 

on the record that the defendant was informed of such
 

constitutional rights and incidents of a trial as is
 

reasonable to warrant the conclusion that he understood what
 

a trial is and that by pleading guilty he was knowingly and
 

voluntarily giving up his right to a trial and such rights and
 

incidents.” Id., citing Guilty Plea Cases, supra at 122. The
 

actual rule itself appears to be little more than a bit actor
 

6
 
in this process.
 

While it is true that the Guilty Plea Cases established
 

that the determination whether MCR 6.302 was “substantially
 

complied with” was to be part of a case-by-case inquiry, this
 

Court also made clear at the time that the rule requires that
 

a defendant be advised of his right to be presumed innocent,
 

because such right is “at the core of our criminal process and
 

fundamental to defendant’s understanding of a trial.” Id. at
 

125. In Guilty Plea Cases, this Court reversed a conviction
 

entered on a plea of guilty where the trial court had failed
 

to inform the defendant, during the guilty plea hearing, of
 

his right to be presumed innocent. Id.
 

Further, this Court has had subsequent occasion to
 

address whether a defendant must be advised of this right, and
 

has concluded that a trial court’s failure to advise the
 

defendant, at the guilty plea hearing, that he has the right
 

to be presumed innocent is error requiring reversal of the
 

conviction. In People v Allen, 396 Mich 829 (1976), the
 

defendant was not advised of the presumption of innocence,
 

and, as a result, had his conviction set aside. In People v
 

Lawrence, 413 Mich 866 (1982), there was an omission of any
 

statement to the defendant that he had the right to be
 

presumed innocent and, as a result, his conviction was
 

reversed.
 

The Court of Appeals has also followed this established
 

7
 
precedent. In People v Ingram, 166 Mich App 433, 437-438; 424
 

NW2d 19 (1988), the Court of Appeals held that a defendant
 

must be advised at the guilty plea hearing, however
 

imprecisely, that he is relinquishing his right to be presumed
 

innocent. In People v Heintzelman, 142 Mich App 94, 95; 368
 

NW2d 903 (1985), the defendant’s conviction was reversed where
 

the trial court had failed to advise him of his right to be
 

presumed innocent. In People v Mitchell, 125 Mich App 475,
 

477; 336 NW2d 31 (1983), the Court of Appeals reversed the
 

defendant’s conviction where the trial court did not advise
 

him of his right to be presumed innocent until proved guilty.
 

In People v Bender, 124 Mich App 571, 578; 335 NW2d 85 (1983),
 

the Court of Appeals held that “[t]he right to be presumed
 

innocent is of preeminent importance and, therefore, a
 

defendant must be informed of this right on the record or his
 

plea is constitutionally defective.” The Court proceeded to
 

reverse the defendant’s conviction where the record did not
 

disclose that he was “personally informed, precisely or
 

imprecisely, of his right to be presumed innocent.” Id. In
 

People v Wilson, 78 Mich App 307, 308; 259 NW2d 356 (1977),
 

the Court of Appeals reversed the defendant’s conviction where
 

the record did not establish that the trial court had advised
 

him of his right to be presumed innocent until proved guilty
 

beyond a reasonable doubt. 


This line of precedent firmly establishes that, where a
 

8
 
 

trial court has completely failed to advise the defendant of
 

his right to be presumed innocent at the guilty plea hearing,
 

the defendant is entitled to a reversal of his conviction, and
 

either to replead or proceed to trial. In this case,
 

defendant was not informed, in any manner, of his right to be
 

“presumed innocent until proved guilty.” MCR 6.302(B)(3)(c).
 

A waiver of the constitutional right set forth by the
 

rule is supposed to be “an intentional relinquishment or
 

abandonment of a known right or privilege.” Johnson v Zerbst,
 

304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938)(emphasis
 

added); see also People v Siebert, 450 Mich 500, 510; 537 NW2d
 

891 (1975). In this case, it is impossible to conclude that
 

defendant made an intentional relinquishment of his right at
 

trial to be presumed innocent. People v Scott, 381 Mich 143,
 

147-48; 160 NW2d 878 (1968). This is simply because defendant
 

was never informed at all of this right. Obviously, it could
 

not be determined that he understood that this right was being
 

“forever relinquished” with respect to the charges to which he
 

pleaded guilty. Given the circuit court’s omission in this
 

case, we cannot conceivably determine whether the purpose of
 

MCR 6.302 was fulfilled, i.e., whether the defendant’s pleas
 

constituted a “knowing and voluntary” waiver of his
 

constitutional rights.5
 

5
 Indeed, it appears that one fundamental difference


(continued...)
 

9 
I am unpersuaded by the argument of the majority that,
 

while this Court has previously stated that a failure to
 

advise the defendant of his right to be presumed innocent at
 

the guilty plea hearing is error requiring reversal, it is not
 

error if the omitted statements concerning the presumption of
 

innocence were made at some point during the criminal justice
 

process, although not, as expressly required, at the guilty
 

plea hearing itself.
 

The majority observes, in this regard, that “earlier in
 

the day defendant was present while the same judge instructed
 

the jury that convened for defendant’s trial—on the charge to
 

which he subsequently pleaded guilty—that the defendant was
 

presumed innocent until proven guilty . . . .” Slip op at 2.
 

The majority accords greater weight to this happenstance than
 

to the fact that the judge failed to comply with its
 

obligation that it “must . . . personally” advise defendant of
 

his constitutional rights, and that it must do so at the
 

guilty plea hearing. The majority opinion continues in this
 

regard: 


In light of the Guilty Plea Cases, 395 Mich
 

5(...continued)


between “imprecise recitals,” which we have deemed appropriate


in most instances, and no recital at all, is that, with


respect to the former, it can still be determined, however


imperfectly, on the appellate review whether a defendant’s


plea has been made knowingly and voluntarily, whereas with the


latter, it is impossible to conclude similarly because there


is simply no record evidence at all.
 

10
 
96; 235 NW2d 132 (1975), the question is whether


there was substantial, not strict, compliance with


the requirements of MCR 6.302.[6]
 

Despite the trial court’s omission of the


presumption of innocence during the plea hearing,


we hold that defendant “was informed of such
 

constitutional rights and incidents of a trial as


reasonable to warrant the conclusion that he
 

understood what a trial is and that by pleading


guilty he was knowingly and voluntarily giving up


his right to a trial and such rights and
 

incidents.” [Slip op at 2, quoting Guilty Plea
 

Cases, supra at 122 (emphasis added).]
 

One could hardly imagine a trial proceeding where the jury has
 

not been informed that the defendant has a right to enjoy the
 

presumption of innocence. Is it the majority’s new rule that
 

where, as might commonly occur, a guilty plea is taken after
 

a defendant has decided to abort a trial, the court need not
 

comply with those aspects of MCR 6.302 that were touched upon
 

in any manner during such trial? Does such a partial trial
 

effectively nullify the requirement that a pleading defendant
 

be apprised of his presumption of innocence? Is the explicit
 

requirement of the rule that the trial court “speak directly”
 

6 While I agree that the proper inquiry is whether the


trial court has “substantially complied” with the court rule,


I disagree that a complete failure to make the required


statements can nonetheless be characterized as “substantial”
 

compliance. It is not as if, for example, the court had


advised the defendant that he had a right to be presumed “not


guilty” as opposed to being presumed “innocent.” Rather,
 

there has been no compliance at all. As noted, our


jurisprudence clearly articulates that there is a substantial


difference between “imprecise recitals” and situations in


which the required statement advising the defendant of his


rights is not made at all. See Russell, supra at 631; Ingram,
 

supra at 437-438; Bender, supra at 578. 


11
 
to the defendant satisfied where the court instead “speak[s]
 

directly” to the jury? Is the explicit requirement of the
 

rule that the trial court advise the defendant of his rights
 

during the guilty plea hearing satisfied when the defendant
 

overhears these words in the court’s statement to the jury?
 

Is the purpose of the rule, that the defendant be advised of
 

his rights when he is most focused upon the implications of
 

his nearly irrevocable decision to convict himself by a guilty
 

plea, fulfilled where he overhears these rights in a context
 

far removed from this moment of irrevocability?7
 

To all of these questions, I answer that it is the
 

defendant, not the members of the jury, who must ultimately
 

consider the gravity of an admission of guilt. And it is
 

unwarranted to equate, as the majority does here, the
 

defendant’s possible awareness of these rights when they were
 

brought to the attention of the jury with the defendant
 

himself being personally advised of these rights at the guilty
 

plea hearing, after he has chosen to acknowledge the crime for
 

which he has been charged.8 It is not during the jury trial
 

7 “[A] guilty plea is more than an admission of conduct:


it is a conviction.” Boykin, supra at 242.
 

8
 I emphasize the “possible” awareness of the defendant


because, of course, there is no certainty that the defendant


was even paying attention to, much less apprehending, any


particular statement by the trial court to the jury.


Defendant, at the time, may instead have been daydreaming or


distracted or confused or consulting with his lawyer. The
 

(continued...)
 

12
 
that the defendant has made the momentous decision to admit
 

guilt, and, thus, it is not at that juncture that he must be
 

impressed with the import of his decision to plead guilty and
 

be apprised of the consequences of his decision. Indeed, as
 

this Court stated in the Guilty Plea Cases:
 

That a defendant may have been tried by a jury


in another case or learned of his rights in an


earlier plea-taking proceeding would no more negate


his right to be informed of the right to and


incidents of a trial at the time a plea of guilty
 

is offered than would proof that he had seen Perry


Mason on television or read Erle Stanley Gardner.
 

Many defendants have been made aware at one


time or another of the right to an incidents of a


trial and the consequences of a plea of guilty.


Nevertheless, whatever the personal history of the
 

accused and the quality of his representation, the


appearance of justice and the integrity of the


process by which pleas of guilty are offered and


accepted require, in the solemn moment of passage
 

from presumed innocence to conviction and potential
 

imprisonment, that the judge apprise every


defendant of the rights he is waiving and the


consequences of his plea and make the other
 

determinations required by the rule. However, a
 

recital of rights to one defendant by one judge on
 

one day, may suffice as a recital of rights to that


same defendant by the same judge on that same day


in another case. [Id. at 121-122 (emphasis


added).][9]
 

8(...continued)


virtue of MCR 6.302 is that, because the court must personally


address the defendant and take into consideration the nature
 

of his response in determining whether to accept the guilty


plea, appellate courts can be reasonably confident that a


defendant has intelligently relinquished the full panoply of


rights attendant to a jury trial. The appellate courts can


have no similar assurance in the instant circumstance. 


9 The implication of the majority’s reasoning is that the


(continued...)
 

13 
 

That is, a recital of rights at a previous guilty plea hearing
 

in the same case of the rights that a defendant is waiving may
 

suffice to satisfy the requirements of MCR 6.302. However,
 

this Court has never before subscribed to the proposition that
 

the mere fact that a jury, in a partial trial, has been
 

instructed on a defendant’s right to be presumed innocent is
 

sufficient to obviate the specific requirements of the court
 

rules.10
 

The fundamental error that pervades the majority opinion
 

is in its reading of Guilty Plea Cases and its holding that
 

“there is substantial compliance with the ‘personally address’
 

9(...continued)


“habitual offender,” or the defendant who has previously been


involved in the criminal justice system, has something less


than a full right to be informed, at the guilty plea hearing,


of his constitutional rights in accordance with MCR 6.302, by


virtue of his presumed familiarity with such rights. Would
 

the majority also conclude that no compliance with the rule is


required for the defendant-lawyer or the defendant-judge


because of his presumed knowledge of constitutional law?


Simple adherence to the express requirements of the rule would


avoid this Court having to determine which class of defendants


possessed alternative means by which to become informed of the


rights that they were relinquishing by a plea of guilty.
 

10 See also People v Jackson, 71 Mich App 468, 471-72;
 

248 NW2d 551 (1976) (BURNS, J., dissenting), disagreeing with


the majority’s holding that advisement of a defendant’s rights


at a guilty plea hearing earlier in the day constituted


sufficient waiver of his rights at a subsequent hearing, and


citing the Guilty Plea Cases, noting that while the
 

presumption of innocence is not a Jaworski right, this Court


“has deemed it necessary to continue to require reversal in


cases where the guilty-pleading defendant is not advised of


that incident of trial.”
 

14
 
 

requirement . . . even though the judge fails to recite a
 

specific right at the guilty plea hearing . . . .” Slip op at
 

13. The focus of the majority opinion in this regard is on
 

the language found at 114-115 of Guilty Plea Cases. There,
 

the Court addressed the requirement of the rule that the judge
 

“personally address[] the defendant” at the guilty plea
 

hearing. The Court concluded in one of the twenty-four
 

consolidated cases, Courtney, that the judge did not
 

“personally advise the defendant of the maximum sentence but
 

in moving to add a second count the prosecutor stated the
 

maximum penalty of five years.” Id. at 114. The Court next
 

addressed Bauer, a case in which “the judge did not state the
 

charge but the prosecutor read the information on the plea
 

record.” Id.(emphasis added).11 This Court stated:
 

These departures do not justify reversal.


While it would be better for the judge to cover all


the points himself, as long as he assumes the


principal burden of imparting the required


information, as did the judges in Courtney and
 

Bauer, the purpose of requiring him personally to


address the defendant and in so doing observe his


demeanor and responses is achieved.
 

A guilty plea conviction will not be reversed


if the judge engages in the required colloquy but


fails to mention an item which the record shows was
 

established through, for example, an opening
 

statement of or interjection by the prosecutor or
 

defense counsel in the hearing of the judge and
 

11 Courtney and Bauer were the only two cases among the


twenty-four cases consolidated in Guilty Plea Cases that
 

specifically concerned the “personally address” requirement of


MCR 6.302.
 

15
 
defendant. It is proper for the prosecutor or the
 

clerk to read the information in the judge’s
 

presence. [Id. at 114-115 (emphasis added).] 


Both Courtney and Bauer involved the assessment of
 

statements occurring during the guilty plea hearing itself in
 

order to determine whether there had been substantial
 

compliance with the rule. Contrary to the majority opinion,
 

Guilty Plea Cases does not rely upon statements or events
 

occurring outside the four corners of the guilty plea
 

hearing.12 Therefore, I reject its assertion that “twenty-five
 

years” of precedent establish that the required statements do
 

not have to be made at the guilty plea hearing. Rather, the
 

precedent cited in this opinion establishes that for twentyfive years, since the Guilty Plea Cases, Michigan courts have
 

adhered to the principle that a defendant must be informed at
 

the guilty plea hearing that he has a right to be presumed
 

innocent. The majority’s extrapolation from focusing upon
 

substantial compliance at the guilty plea hearing to focusing
 

upon substantial compliance over some indeterminate period
 

surrounding the hearing runs counter to this well-established
 

precedent. It also runs counter to the principle that, in
 

order for a guilty plea to be knowing and voluntary, a
 

defendant must be informed of the rights he is surrendering at
 

12 One of the reasons for requiring that a guilty plea


hearing be conducted in a discrete proceeding is to preserve


the overall integrity of the defendant’s decision to plead


guilty.
 

16
 
that time, at that hearing at which he finally decides to
 

admit guilt.13
 

The majority seeks to distinguish the right to be
 

presumed innocent until proved guilty from the rights
 

identified in Jaworski of which a defendant must be informed.14
 

However, the mere fact that the Jaworski rights have not
 

encompassed the presumption of innocence does not indicate
 

that this right is of any less consequence or should be
 

treated in any different fashion, nor does the majority
 

suggest any rationale for such treatment. In Russell, supra
 

at 629-630, the Court of Appeals noted that, in the Guilty
 

Plea Cases, this Court “elevated the presumption of innocence
 

to the same status as the three Jaworski rights.”15 See also
 

13 Further, contrary to the majority’s statement at 14


that “[t]he dissent has not identified any basis in the rule


to support” its position that trial judges must personally


advise the defendant at the guilty plea hearing concerning the


right to be presumed innocent, I believe that my position is


adequately supported by the language of MCR 6.302(B). This
 

rule requires the court to “[s]peak[] directly to the


defendant, . . . advise the defendant and determine that the


defendant understands . . . .” Only by a great stretch can


this rule be read to authorize a situation where, as here, the


defendant was never directly addressed in regard to the


presumption of innocence.
 

14 See People v Jaworski, 387 Mich 21, 28-29; 194 NW2d


868 (1972), holding that a defendant must be advised of the
 

three constitutional rights enumerated in Boykin: (1) the


privilege against compulsory self-incrimination, (2) the right


to trial by jury, and (3) the right to confront one’s


accusers.
 

15 The United States Supreme Court has stated that “[t]he


(continued...)
 

17
 
 

Johnson v Ohio, 419 US 924, 926; 95 S Ct 200; 42 L Ed2d 158
 

(1974) (Douglas, J., dissenting), in which one justice, in
 

dissenting to a denial of certiorari, observed that “[t]he
 

Boykin enumeration [of rights to which a pleading defendant is
 

entitled to be advised] was illustrative, not exhaustive.”16
 

V. RESPONSE TO THE CONCURRENCE
 

I also respectfully disagree with the concurrence that
 

15(...continued)


presumption of innocence, although not articulated in the


Constitution, is a basic component of a fair trial under our


system of criminal justice.” Estelle v Williams, 425 US 501,


503; 96 S Ct 1691; 48 L Ed 2d 126 (1976). See also Abraham,


note 4 supra at 105, stating:
 

[T]he presumption of the innocence of the


accused is transformed into courtroom procedure in


the Anglo-Saxon countries. Essential to it are the
 

ancient, basic safeguards inherent in that
 

philosophy of the law, safeguards which, to a


greater or lesser degree, are fundamental to the


notions of liberty and justice that pervade the


political system of the liberal democratic West.


Among these are the privilege against compulsory


self-incrimination; the right to cross-examine
 

witnesses; the writ of habeas corpus . . . perhaps


the most basic right of all, dating at least to the


Magna Carta (1215)—and many others in the same


general category.
 

Notably, the rights referred to in this passage along with the


presumption of innocence, are the Jaworski rights. 


16 It is not my view that the trial court is required


during the guilty plea hearing to “strictly” comply with the


obligation that a defendant be advised of his right to be


presumed innocent, or with regard to any other particular


obligation, beyond what is required by Jaworski. I do
 

believe, however, that the extent of a court’s compliance with


the requirements of MCR 6.302 must be assessed in terms of


what has occurred at the guilty plea hearing.
 

18
 
advising the defendant at his guilty plea hearing that he was
 

relinquishing the right to have the jury decide whether his
 

guilt could be proven beyond a reasonable doubt sufficiently
 

imparted the idea that he was also relinquishing his right to
 

be presumed innocent. MCR 6.302(B)(3)(c) requires a statement
 

to the defendant that the judge, jury, and prosecutor are to
 

presume his innocence until his guilt is proven. MCR
 

6.302(B)(3)(d) requires a separate statement informing the
 

defendant that it is the prosecutor’s burden to prove his
 

guilt beyond a reasonable doubt. Thus, subrules (c) and (d)
 

are distinct requirements of the guilty plea hearing.17
 

17 In note 10, the majority, perhaps inadvertently, adopts


the premises of the concurrence that the “beyond a reasonable


doubt” instruction embodied in subrule (3)(d) is sufficiently


equivalent to the “presumption of innocence” instruction


contained in subrule (3)(c) to warrant a finding that the


former instruction suffices in lieu of the latter. This is
 

because Russell approved the instruction given to the
 

defendant, during the guilty plea hearing, that the
 

“[p]rosecutor must prove you guilty beyond a reasonable doubt”


even though, as the majority observes, the judge “never spoke


the precise words ‘presumed innocent.’” Russell, supra at 631.
 

Yet, as explained here, the two instructions clearly are


distinct, both conceptually and in the specific context of the


language of MCR 6.302. As Guilty Plea Cases made clear, and


as evidenced by the change in the court rules, see GCR 1963,


785.7(1)(d)(ii) (which combined the two instructions), and GCR


1963, 785.7(1)(g)(iii), (iv) (which separated the two
 

instructions), the presumption of innocence is a distinct


right that should always be stated in advising the defendant


at the guilty plea hearing.
 

Concerning the other cases referenced by the majority in


that note, as the dissent has already observed, (a) in


Jackson, the defendant was informed of his right to be


presumed innocent at a guilty plea hearing; (b) in Ingram,


(continued...)
 

19
 
The distinction between the presumption of innocence and
 

the “reasonable doubt” standards has been extensively
 

discussed by the United States Supreme Court. Coffin v United
 

States, supra at 460-461 (holding that a trial judge’s failure
 

to instruct the jury on the presumption of innocence required
 

reversal, notwithstanding the adequacy of instructions
 

provided on the closely related reasonable doubt standard).
 

In Coffin, the Court traced the “presumption of innocence”
 

back to ancient law, and stated of the argument that “proof
 

beyond a reasonable doubt” and “presumption of innocence” are
 

equivalent:
 

To say that the one is the equivalent of the


other is therefore to say that legal evidence can


be excluded from the jury, and that such exclusion


may be cured by instructing them correctly in


regard to the method by which they are required to


reach their conclusion upon the proof actually


before them; in other words, that the exclusion of


an important element of proof can be justified by


correctly instructing as to the proof admitted.


The evolution of the principle of the presumption


of innocence, and its resultant, the doctrine of


reasonable doubt, make more apparent the
 

correctness of these views, and indicate the
 

necessity of enforcing the one in order that the
 

17(...continued)


defendant was instructed on the presumption of innocence at


his guilty plea hearing; (c) in Bender, supra at 579,


defendant’s conviction was reversed because the defendant “was
 

not personally informed of his right to be presumed innocent”;


and (d) in Heintzelman, Mitchell, and Wilson, the Court of
 

Appeals held that a defendant must be given the required


instruction.
 

20
 
other may continue to exist. [Id. at 460.][18]
 

Subsequently, in Taylor v Kentucky, 436 US 478, 484; 98 S Ct
 

1930; 56 L Ed2d 468 (1978), the Supreme Court observed:
 

[T]he requirement that a jury be informed both
 

of the presumption of innocence and of the
 

requirement of proof beyond a reasonable doubt]


derives from a perceived salutary effect upon lay
 

18 See also Chambers, Reasonable certainty and reasonable
 

doubt, 81 Marq L R 655, 671, 674 (1998), stating:
 

The reasonable doubt standard and the
 

presumption of innocence work in tandem to help


assure that defendants are convicted fairly.


Reasonable doubt requires that jurors be thoroughly


convinced of a defendant’s guilt before conviction.


The presumption of innocence effectively requires


that jurors begin and end their inquiry with a


skeptical mindset.
 

* * *
 

That reasonable doubt and the presumption of


innocence are related is undeniable. Understanding


the relationship between them requires recognizing


that the pairing of the two concepts forces a juror


to move from a subjective state of disbelief


regarding the prosecution’s claims of defendant’s


guilt to a subjective state of justified certainty


regarding defendant’s guilt. That the juror must


be so transformed ensures that the evidence used to
 

convict a defendant will be powerful. Reasonable
 

doubt requires only that a juror be subjectively


certain that defendant committed the crime before
 

voting for guilt. A juror can reach a subjective,


but possibly unjustified, state of certainty in the


absence of a presumption of innocence. The
 

presumption of innocence requires that jurors think


more deeply than they otherwise would about whether


all reasonable doubts have been eliminated before
 

convicting a defendant 


See also Diamond, Note, Reasonable doubt: To define, or not to
 

define, 90 Colum L R 1716, 1730-1731 (1990).
 

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jurors. While the legal scholar may understand
 

that the presumption of innocence and the
 

prosecution’s burden of proof are logically


similar, the ordinary citizen well may draw
 

significant additional guidance from an instruction


on the presumption of innocence.
 

In my judgment, this reasoning applies with equal force to the
 

guilty plea hearing, where a criminal defendant is faced with
 

the decision to admit or deny guilt. Omitting the instruction
 

on the presumption of innocence deprives such a defendant of
 

an opportunity to fully assess his own circumstances and
 

intelligently reflect upon his options.
 

While a scholar of the law may well recognize the close
 

philosophical and constitutional connection between (indeed
 

the inextricability of) the right to be presumed innocent and
 

the right to be proved guilty beyond a reasonable doubt, MCR
 

6.302 understandably sets these apart as discrete rights to be
 

explained to the pleading defendant. The rules do so because,
 

considered together, these formulations explain more
 

thoroughly and more clearly to the nonscholar, to the
 

defendant, the full measure of the rights that he is
 

relinquishing by his guilty plea.19
 

CONCLUSION
 

The Guilty Plea Cases established that a trial court’s
 

19 By the concurrence’s analysis, the trial court could


just as well advise the defendant that he is entitled to “due


process” of law, and have such an instruction suffice to


satisfy MCR 6.302 in lieu of instructions concerning the


individual components of due process set forth in the rule. 


22
 
failure to comply with MCR 6.302 and advise the defendant of
 

his right to be presumed innocent constituted error requiring
 

reversal. Until today, this Court has not wavered from
 

adherence to this principle. In my judgment, the trial court
 

is obligated under the Michigan rule to inform the defendant
 

of his presumption of innocence at the guilty plea hearing,
 

and the extent to which there has been “substantial
 

compliance” with this obligation must be assessed in terms of
 

what occurred at such hearing. Because there was a complete
 

failure on the part of the trial court in this case to comply
 

with MCR 6.302 by advising defendant, at his guilty plea
 

hearing, of his right to be presumed innocent, I would affirm
 

the Court of Appeals decision reversing defendant’s
 

conviction.
 

CAVANAGH and KELLY, JJ., concurred with MARKMAN, J.
 

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