_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED MARCH 29, 2005 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v No. 124811 

WAYNE L. YOUNG, 

Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

CORRIGAN, J. 

In People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), 

this Court invented a new rule regarding cautionary 

instructions on accomplice testimony. That rule provided 

that the trial court’s failure to give a cautionary 

instruction upon a defense request requires reversal of a 

conviction. Moreover, reversal may be required even in the 

absence of a defense request if the issue of guilt is 

“closely drawn.” We reject the McCoy rule because it has 

no basis in Michigan law. Indeed, it contravenes longstanding authorities according discretion to trial courts 
in deciding whether to provide a cautionary instruction on 

accomplice testimony. Moreover, the McCoy rule is 

inconsistent with MCL 768.29, which provides that the 

failure to instruct on a point of law is not a ground for 

setting aside a verdict unless the instruction is requested 

by the accused, and MCR 2.516(C), which states that a party 

may assign as error the failure to give an instruction only 

if the party objects on the record before the jury retires 

to consider the verdict. 

We further clarify that an unpreserved claim of 

failure to give a cautionary accomplice instruction may be 

reviewed only in the same manner as other unpreserved 

arguments on appeal. That is, appellate review is confined 

to the plain-error test set forth in People v Grant, 445 

Mich 535; 520 NW2d 123 (1994), and People v Carines, 460 

Mich 750; 597 NW2d 130 (1999). We therefore affirm the 

judgment of the Court of Appeals, because it reached the 

correct result in affirming defendant’s convictions and 

sentences. 

I. UNDERLYING FACTS AND PROCEDURAL HISTORY 

Defendant shot and killed two people in an executionstyle slaying while robbing a drug house in Detroit. Among 

other evidence of guilt, the prosecution presented 

2
 
testimony from two witnesses whom defendant now claims were 

his accomplices, Michael Martin and Eugene Lawrence. 

Martin testified that defendant came to his house and 

asked him for a gun to rob someone. Martin had no gun. 

Defendant then spoke on the telephone to Martin=s brotherin-law, Lawrence. Martin did not hear their conversation. 

Martin then drove defendant to Lawrence=s house. After they 

arrived, defendant and Lawrence spoke in a back room away 

from Martin, who again could not hear their conversation. 

Lawrence testified that during this conversation, 

defendant asked him for a gun because some men had 

threatened him. Defendant did not mention to Lawrence any 

plan to rob a drug house. Lawrence did furnish a gun to 

defendant. Martin and defendant then drove back to 

Martin’s home. Martin went inside his home while defendant 

walked off in the direction of a nearby drug house. 

Defendant later telephoned Martin, stating that he was 

planning to rob a drug house. Martin hung up. Later that 

day, defendant visited Martin’s home and admitted that he 

had shot the two victims in the head. After defendant 

left, Martin contacted Lawrence. Martin and Lawrence then 

went to defendant=s home. Defendant told them that he was 

angry because he had killed the victims for only six rocks 

of crack cocaine. Defendant called an unknown person and 

3
 
directed him to tell Martin where to find the gun. 

Defendant eventually directed Martin and Lawrence to a 

field near Martin’s home where Martin found the gun. 

The police questioned Martin twice. During the second 

interview, he disclosed what had happened. The police then 

retrieved the murder weapon. Martin and Lawrence were 

never charged with a crime in connection with the murders. 

In addition to the testimony of Martin and Lawrence, 

the prosecution presented other evidence of defendant’s 

guilt. One witness testified that defendant had also asked 

him for a gun. Another witness, Ronald Mathis, had seen 

defendant in the drug house just before the murders 

occurred. At that time, defendant offered to sell Mathis a 

gun. Mathis then left the premises. Upon his return 

approximately fifteen minutes later, Mathis discovered the 

victims’ bodies and noted that defendant was gone. 

Finally, a cigarette butt recovered at the murder scene 

contained deoxyribonucleic acid (DNA) material that matched 

defendant=s DNA. 

Defendant was charged with several offenses, including 

first-degree murder, MCL 750.316. The jury convicted 

defendant of two counts of second-degree murder, MCL 

750.317; one count of assault with intent to commit armed 

robbery, MCL 750.89; one count of possession of a firearm 

4
 
 

 

during the commission of a felony, MCL 750.227b; and one 

count of possession of a firearm by a person convicted of a 

felony, MCL 750.224f. Defendant was sentenced to 

concurrent terms of forty-five to seventy years’ 

imprisonment for the second-degree murder convictions, 

forty to sixty years’ imprisonment for the assault 

conviction, and two to five years’ imprisonment for the 

felon in possession of a firearm conviction. Those 

sentences are to be served consecutively to the two-year 

term of imprisonment for the felony-firearm conviction. 

The Court of Appeals affirmed defendant’s convictions.1 

It rejected defendant=s contention that the trial court had 

erred under McCoy in failing to sua sponte provide a 

cautionary instruction on accomplice testimony, concluding 

that: (1) this case did not present a closely drawn 

credibility contest, and (2) it was not clear that Martin 

and Lawrence were accomplices. 

We granted defendant’s application for leave to 

appeal. 470 Mich 869 (2004), mod 471 Mich 862 (2004). 

II. STANDARD OF REVIEW 

Whether the McCoy rule has a basis in Michigan law and 

whether it is consistent with MCL 768.29 and MCR 2.516(C) 

1 Unpublished opinion per curiam, issued September 25,

2003 (Docket No. 240832). 

5
 
are questions of law that we review de novo. Jenkins v 

Patel, 471 Mich 158, 162; 684 NW2d 346 (2004). Moreover, 

as discussed later in this opinion, the decision whether to 

give a cautionary accomplice instruction falls within the 

trial court’s sound discretion. MCL 768.29; People v 

Dumas, 161 Mich 45, 48-49; 125 NW 766 (1910); People v 

Wallin, 55 Mich 497, 505; 22 NW 15 (1885). We therefore 

review that decision for an abuse of discretion. Finally, 

where, as here, the defendant failed to preserve his claim, 

our review is confined to the plain-error framework set 

forth in Grant and Carines. 

III. ANALYSIS 

A. Legal Background 

In McCoy, this Court discussed dangers that inhere in 

accomplice testimony, including “'the effect of fear, 

threats, hostility, motives, or hope of leniency.'” McCoy, 

supra at 236, quoting 30 Am Jur 2d, Evidence, § 1148, p 

323. The McCoy Court stated that in People v Jenness, 5 

Mich 305, 330 (1858), this Court referred to a judge’s duty 

to comment, where warranted, on the nature of accomplice 

testimony. The McCoy Court acknowledged, however, that 

subsequent case law reflected that the trial court had 

discretion in deciding whether to provide a cautionary 

accomplice instruction. See Dumas, supra. 

6
 
The McCoy Court also acknowledged that federal courts 

have not articulated a definitive rule regarding cautionary 

instructions on accomplice testimony. Indeed, the United 

States Supreme Court refused to reverse a conviction on the 

basis of a failure to give such an instruction in Caminetti 

v United States, 242 US 470, 495; 37 S Ct 192; 61 L Ed 442 

(1917). The Caminetti Court stated that “there is no 

absolute rule of law preventing convictions on the 

testimony of accomplices if juries believe them.” Id. 

Despite these authorities, the McCoy Court invented a 

novel rule: “For cases tried after the publication of this 

opinion, it will be deemed reversible error . . . to fail 

upon request to give a cautionary instruction concerning 

accomplice testimony and, if the issue is closely drawn, it 

may be reversible error to fail to give such a cautionary 

instruction even in the absence of a request to charge.” 

McCoy, supra at 240. 

Justice Coleman dissented in McCoy. She cited MCL 

768.29, which provides: “The failure of the court to 

instruct on any point of law shall not be ground for 

setting aside the verdict of the jury unless such 

instruction is requested by the accused.” She also quoted 

the predecessor to MCR 2.516(C), GCR 1963, 516.2: “No party 

may assign as error the giving or the failure to give an 

7
 
instruction unless he objects thereto before the jury 

retires to consider the verdict, stating specifically the 

matter to which he objects and the grounds of his 

objection.” 

Justice Coleman noted that the articulation in 

Jenness of a duty to comment on accomplice testimony 

predated both the statute and the court rule. Moreover, 

Jenness “was not a rigorously applied precedent.” McCoy, 

supra at 248. For example, in Dumas, this Court stated: 

It is the long settled rule in this State

that the credibility of an accomplice, like that

of any other witness, is a question exclusively

for the jury. And while there have been 

intimations, rather than rulings, to the effect

that it is proper, or is not improper, especially

in cases where an accomplice is the sole witness

upon a material point, for the trial court to

direct the attention of the jury to the 

circumstance and invite the exercise of caution 

upon the part of the jury, we know of no decision

of this court in which it is held or intimated 

that the failure of the court to indulge in

voluntary comment is ground for reversal. [Dumas, 

supra at 48.] 

The Dumas Court had also quoted from Wallin, supra, 

where the trial court had refused a defense request to 

instruct the jury regarding circumstances that tended to 

discredit a witness. Chief Justice Cooley, writing for a 

unanimous Court in Wallin, rejected the defense argument: 

"We repeat that instructions respecting the

credibility of witnesses, which involve no 

question of law, are not matter of right. The 

8
 
judge is under no obligation to comment upon the

facts; he may, if he chooses, confine himself

strictly to laying down such rules of law as must

guide the action of the jury, and leave the facts

to them without a word of comment. In many cases

this is no doubt the desirable course. And it is 

always within the discretion of the judge to

adopt it." [Id. at 48-49, quoting Wallin, supra

at 505.] 

Justice Coleman’s dissenting opinion in McCoy also 

noted that the Court of Appeals had rejected an argument 

for a cautionary accomplice instruction in People 

Sawicki, 4 Mich App 467; 145 NW2d 236 (1966), in part 

because defense counsel on cross-examination had fully 

explored the circumstances of the accomplice=s testimony: 

In a criminal case it is not only proper but

it is the duty of counsel for defendant to place

before the jury all circumstances surrounding the

people=s witness upon the stand, as well as any

fact which would have any reasonable tendency to

affect their credibility. It is the function of 

the jury to decide first if the witness is 

interested, and second if the witness’ interest has

affected the credibility of his testimony. The 

trial judge is not required to comment in his

instruction concerning a witness’ interest since it

bears upon the question of credibility which is

reserved to the jury. [Id. at 475 (citations

omitted).] 

In light of these authorities, Justice Coleman 

concluded in McCoy that neither statute nor case law 

required the court to give a cautionary accomplice 

instruction in the absence of a request. Moreover, the 

failure to so instruct did not deny the defendant in McCoy 

9
 

v 
a fair trial, because “the accomplice was thoroughly crossexamined and the jury fully aware of all facets of his 

involvement. The judge correctly instructed that the 

testimony of all witnesses should be considered as to 

motive, prejudice, bias or interest in the outcome.” 

McCoy, supra at 250. 

This Court discussed the holding in McCoy in People v 

Reed, 453 Mich 685; 556 NW2d 858 (1996). In Reed, a 

codefendant testified in a joint trial, and the defendant 

argued on appeal that a cautionary accomplice instruction 

should have been given sua sponte. This Court rejected 

that argument because such an instruction would have 

prejudiced the codefendant. 

The Court in Reed also explained that McCoy does not 

require automatic reversal for failure to instruct sua 

sponte in a closely drawn case. Rather, McCoy says only 

that such a failure to instruct may require reversal. 

Before Reed, this Court had not established standards for 

determining when the failure to instruct sua sponte 

requires reversal. The Reed Court concluded that reversal 

was not required where the accomplice=s potential 

credibility problems have been plainly presented to the 

jury by other means, such as through defense counsel’s 

10
 
cross-examination of the alleged accomplice. Reed, supra 

at 693. 

The Reed Court did not require reversal because the 

codefendant/accomplice=s credibility problems were plainly 

apparent to the jury. Defense counsel and the prosecutor 

had explored credibility problems during cross-examination. 

Moreover, the accomplice was not a prosecution witness, but 

was a codefendant, and thus was not the beneficiary of any 

favorable bargains from the prosecution. 

In People v Gonzalez, 468 Mich 636; 664 NW2d 159 

(2003), this Court questioned McCoy. We quoted MCL 768.29, 

which provides that “[t]he failure of the court to instruct 

on any point of law shall not be ground for setting aside 

the verdict of the jury unless such instruction is 

requested by the accused,” and MCR 2.516(C), which states 

that “[a] party may assign as error the . . . failure to 

give an instruction only if the party objects on the record 

. . . .” We then stated: 

In this case, defendant neither requested a

cautionary accomplice instruction nor objected to

the court=s failure to give one. Therefore,

defendant is precluded from arguing that the 

omitted instruction was error. MCR 2.516(C).

Furthermore, because he failed to request the

omitted instruction, defendant is not entitled to

have the verdict set aside. MCL 768.29. 

Consequently, defendant=s only remaining avenue

for relief is for review under People v Grant,

445 Mich 535; 520 NW2d 123 (1994). 

11
 
Because defendant failed to object to the

omitted instruction, defendant=s claim of error 

was forfeited. A forfeited, nonconstitutional

error may not be considered by an appellate court

unless the error was plain and it affected 

defendant=s substantial rights. Grant, supra at 

552-553. [Gonzalez, supra at 642-643.] 

We then concluded that no error occurred because there 

was no evidence that the alleged accomplice was involved in 

the crime, and because the cautionary accomplice 

instruction would have been inconsistent with the defense 

theory at trial. Because the defendant could not 

demonstrate an error, he could not establish a plain error 

that affected his substantial rights, and thus he was not 

entitled to relief for the forfeited claim under Grant. 

B. Analysis 

The rule created in McCoy has no basis in Michigan 

law. The McCoy rule mandates reversal of convictions for 

failing to give a cautionary accomplice instruction upon 

request, and allows reversal for failing to give such an 

instruction sua sponte where the issue of guilt is “closely 

drawn.” But as Justice Coleman’s dissent in McCoy 

demonstrates, this Court’s decisions have historically 

accorded discretion to trial courts in deciding whether to 

provide a cautionary accomplice instruction. The mandatory 

rule invented in McCoy subverts this historical discretion. 

12
 
Moreover, the discretion that this Court had, before 

McCoy, accorded to trial courts in this area is consistent 

with our statutory law. MCL 768.29 states: “The court 

shall instruct the jury as to the law applicable to the 

case and in his charge make such comment on the evidence, 

the testimony and character of any witnesses, as in his 

opinion the interest of justice may require.” (Emphasis 

added.) The phrase “as in his opinion the interest of 

justice may require” vests discretion in the trial court to 

decide to what extent it is appropriate to comment on 

matters such as the credibility of witnesses. The McCoy 

Court failed to consider this provision of MCL 768.29. 

Despite these authorities, the McCoy Court chose to 

invent an unfounded rule. Indeed, in People v Atkins, 397 

Mich 163, 171; 243 NW2d 292 (1976), this Court acknowledged 

the lack of a historical basis for the McCoy rule: “[T]he 

McCoy rule under discussion was given prospective 

application for the reason that it went beyond longestablished Michigan precedent to the effect that special 

instructions regarding credibility was [sic] a matter 

within the sound discretion of the trial court.” 

Further, the first portion of the McCoy rule, i.e., 

that reversal is automatically required when the court 

13
 
fails to give an instruction upon request, conflicts with 

MCL 769.26. That provision states: 

No judgment or verdict shall be set aside or

reversed or a new trial be granted by any court

of this state in any criminal case, on the ground

of misdirection of the jury, or the improper

admission or rejection of evidence, or for error

as to any matter of pleading or procedure, unless

in the opinion of the court, after an examination

of the entire cause, it shall affirmatively

appear that the error complained of has resulted

in a miscarriage of justice. 

As we explained in People v Lukity, 460 Mich 484; 596 

NW2d 607 (1999), in light of MCL 769.26, a defendant on 

appeal must demonstrate that a preserved nonconstitutional 

error was not harmless by persuading the reviewing court 

that it is more probable than not that the error affected 

the outcome of the proceedings. “An error is deemed to 

have been ‘outcome determinative’ if it undermined the 

reliability of the verdict.” People v Elston, 462 Mich 

751, 766; 614 NW2d 595 (2000). See also People v 

Rodriguez, 463 Mich 466, 474; 620 NW2d 13 (2000). The 

McCoy mandate of automatic reversal for failing to give a 

cautionary accomplice instruction upon request plainly 

contradicts MCL 769.26. Accordingly, we reject the 

automatic-reversal portion of the rule. 

Next, the portion of the McCoy rule permitting 

reversal in the absence of a defense request if the issue 

14
 
of guilt is “closely drawn” contradicts MCL 768.29, which 

states that “[t]he failure of the court to instruct on any 

point of law shall not be ground for setting aside the 

verdict of the jury unless such instruction is requested by 

the accused,” and MCR 2.516(C), which says that "[a] party 

may assign as error the . . . failure to give an 

instruction only if the party objects on the record 

. . . ." As we explained in Gonzalez, an appellate court’s 

review of unpreserved claims is governed by MCL 768.29 and 

MCR 2.516(C). 

This Court in Reed correctly observed that McCoy does 

not by its own terms require automatic reversal for failure 

to instruct sua sponte where the issue of credibility is 

closely drawn. The McCoy Court said that reversal may be 

required in the absence of a request, not that reversal is 

automatic. The central flaw in this aspect of the McCoy 

rule, however, is that it authorizes reversal without 

regard to the plain-error analysis required by Grant and 

Carines, by focusing solely on whether the issue of guilt 

is closely drawn. As this Court explained in Reed, 

potential credibility problems in a closely drawn case may 

become plainly apparent to a jury in the absence of a 

cautionary instruction. 

15
 
Fundamentally, it is the province of the jury to 

assess the credibility of witnesses. In making that 

assessment, the jury should decide whether witnesses harbor 

any bias or prejudice. Dumas, supra; Wallin, supra; 

Sawicki, supra. And it is the role of defense counsel, 

through cross-examination of prosecution witnesses and 

closing argument, to expose potential credibility problems 

for the jury to consider. Id. The McCoy “closely drawn” 

rule fails adequately to take account of these central 

components of our system of trial by jury. 

For these reasons, we hold that, as with all 

unpreserved claims of error, an unpreserved claim that the 

court failed to give a cautionary accomplice instruction 

may be reviewed only for plain error that affects 

substantial rights. An appellate court must follow the 

Grant/Carines plain-error analysis, and only when the 

defendant satisfies that test is reversal ever appropriate. 

We discern no basis for treating this one category of 

unpreserved claim any differently from other categories of 

alleged error that a defendant has failed to preserve. 

Moreover, in considering whether a plain error exists, 

a reviewing court should be mindful of the discretion 

historically accorded to trial courts in deciding whether 

16
 
 

to give a cautionary accomplice instruction. Dumas, supra; 

Wallin, supra. 

Finally, applying the plain-error test to this case, 

we conclude that defendant has not met his appellate 

burden. A cautionary accomplice instruction was not 

clearly or obviously required in this case. As the Court 

of Appeals noted, it is not clear that Martin and Lawrence 

were accomplices in any event. Moreover, the prosecution 

presented evidence of guilt beyond the testimony of the 

alleged accomplices, including testimony from other 

witnesses and physical evidence that defendant was at the 

murder scene. Further, defense counsel thoroughly crossexamined Martin and Lawrence and challenged their testimony 

during closing argument, thereby exposing their potential 

credibility problems to the jury. The court also 

instructed the jury to consider any bias, prejudice, or 

personal interest that a witness might have. For these 

reasons, defendant has not demonstrated a plain error that 

affected his substantial rights. 

V. CONCLUSION 

We conclude that the McCoy rule has no basis in 

Michigan law and is inconsistent with MCL 769.26, MCL 

768.29, and MCR 2.516(C). A trial court has discretion in 

deciding whether to give a cautionary accomplice 

17
 
instruction. Also, an unpreserved claim that the court 

failed to give a cautionary accomplice instruction may be 

reviewed only for plain error, under the framework set 

forth in Grant and Carines. Accordingly, we overrule McCoy 

and affirm the judgment of the Court of Appeals. 

Maura D. Corrigan

Clifford W. Taylor

Elizabeth A. Weaver 

Robert P. Young, Jr.

Stephen J. Markman 

18
 
_______________________________ 

 

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-Appellee, 

No. 124811 

WAYNE L. YOUNG, 

Defendant-Appellant. 

KELLY, J. (concurring). 

I would affirm the Court of Appeals decision, but I 

strongly disagree with the majority’s reasoning. The 

decision in People v McCoy1 should not be applied to this 

case. It represents a valid rule of law that we should 

retain, and the majority should not use this case as a 

vehicle to abandon it. 

MCCOY IS INAPPOSITE 

In McCoy, we stated: 

[I]t will be deemed reversible error . . .

to fail upon request to give a cautionary

instruction concerning accomplice testimony and,

if the issue is closely drawn, it may be 

reversible error to fail to give such a 

cautionary instruction even in the absence of a

request to charge. [McCoy, supra at 240.] 

1 392 Mich 231; 220 NW2d 456 (1974). 

1
 
Defendant did not request a cautionary instruction in 

this case. To warrant giving the instruction, as McCoy 

tells us, the issue must be “closely drawn.” Id. An issue 

is said to be closely drawn if a credibility contest 

between the defendant and an alleged accomplice must be 

resolved in order to rule on it. People v Gonzalez, 468 

Mich 636, 643 n 5; 664 NW2d 159 (2003); McCoy, supra at 

238-239. 

This case does not involve a closely drawn issue. It 

is not one in which contrary versions of the facts were 

offered, leaving the jury to choose between them. Instead, 

the defense proceeded under the theory that the prosecution 

would be unable to prove every element of the charged 

offenses. 

In argument before the jury, defense counsel attacked 

the story offered by the prosecution. He tried to show 

that the prosecution failed to meet the requirements for 

conviction. In some cases, to create a credibility contest 

between a defendant and an alleged accomplice, the 

defendant would have to take the stand. Other 

circumstances could arise as well that would create a 

credibility contest. However, because defendant in this 

case did not take the stand and his credibility was not 

2
 
 

 

 

otherwise put at issue, he was not entitled to the 

cautionary instruction permitted by McCoy.2 Id. at 240. 

I also agree with the Court of Appeals that there was 

insufficient evidence to conclude that Michael Martin and 

Eugene Lawrence were defendant’s accomplices. Whereas 

Martin accompanied defendant on some of his travels on the 

day of the murders, he never agreed to participate in the 

crime. In fact, he refused to participate. Martin may not 

have done enough to stop defendant, but his failure does 

not make him defendant’s accomplice legally. 

Lawrence provided defendant with a gun. But the 

evidence suggests that Lawrence was unaware that defendant 

planned to use it to commit a felony. Defendant asked 

Lawrence for the gun to protect himself from a person who 

had threatened him. Although insufficient evidence exists 

that Lawrence was defendant’s accomplice, defense counsel 

implied during closing argument that Lawrence and Martin 

were defendant’s accomplices. 

The facts of the McCoy case were entirely different. 

There, the police arrested an individual whom they believed 

had been an accomplice in a robbery. The accomplice 

admitted that he and McCoy had committed the crime. Id. at 

2 At oral argument in this case, defense counsel

admitted that McCoy was a “narrow case” and did not fit the 

facts of this case. 

3
 
 

 

 

241 (Coleman, J., dissenting.). Here, there was no such 

admission. All the evidence suggested that Martin and 

Lawrence were not involved in the crime. Because they were 

not accomplices, the trial court did not err in failing to 

give the special instruction on accomplice testimony. Id. 

at 238-240. 

Hence, the McCoy decision has no application to this 

case, and the majority offers no justification for reaching 

and overruling it here. It is as inappropriate to address 

McCoy in this case as it was in People v Gonzalez, supra, 

in which Justice Young wrote: 

[W]e conclude that there was no evidence of

an accomplice in this case, and, therefore, 

McCoy's "closely drawn" rule is not implicated.

For that reason, we do not reach the question

whether McCoy conflicts with MCL 768.29. 

[Gonzalez, supra at 643 n 6.] 

We should not do here what we chose not to do in Gonzalez. 

MCCOY REPRESENTS A VALID RULE OF LAW3 

3 Given that McCoy is inapposite, there is no need to

apply it to the facts of this case. However, because the

majority has decided to overturn McCoy, I provide a full

discussion of the rules of law laid out in that case. 

Therefore, I will discuss both the requested cautionary

instructions and sua sponte instructions. I feel that both 

were wisely recognized in McCoy and that both fit well 

within the established framework of appellate review in

this state. 

4
 
 

 

The majority accuses the McCoy decision of lacking any 

basis in Michigan jurisprudence and of inventing a novel 

rule of law. Those claims should be examined more closely. 

This Court stated long ago: 

We think the credibility of an accomplice,

like that of any other witness, is exclusively a

question for the jury; and it is well settled

that a jury may convict on such testimony alone

without confirmation. There is no good sense in

always applying the same considerations in every

case to every witness who may stand in the 

relation of particeps criminis. We think it is 

the duty of a judge to comment upon the nature of

such testimony, as the circumstances of the case

may require; to point out the various grounds of

suspicion which may attach to it; to call their

attention to the various temptations under which

such witness may be placed, and the motives by

which he may be actuated; and any other 

circumstances which go to discredit or confirm

the witness, all of which must vary with the

nature and circumstances of each particular case.

[People v Jenness, 5 Mich 305, 330 (1858).] 

This was a rule of law that has been endorsed by this Court 

repeatedly over the past 134 years.4 Obviously, because 

McCoy represents a natural growth of that history, it is 

neither novel nor lacking in legal basis. 

REQUESTED CAUTIONARY INSTRUCTIONS AND 

ABUSE OF DISCRETION/HARMLESS ERROR REVIEW
 

Not only does McCoy have substantial historical 

support, it fits well within Michigan’s long established 

4 See People v Schweitzer, 23 Mich 301, 305 (1871),

People v Hare, 57 Mich 505, 518; 24 NW 843 (1885), People v

Considine, 105 Mich 149, 163; 63 NW 196 (1895), and People

v Koukol, 262 Mich 529, 532-533; 247 NW 738 (1933).

5 
 

 

framework of appellate review. McCoy5 holds that “it will 

be deemed reversible error . . . to fail upon request to 

give a cautionary instruction concerning accomplice 

testimony . . . .” 

The majority concludes that this rule contradicts the 

review established for both abuse of discretion and 

harmless error issues. It accuses McCoy of ignoring the 

discretion of the trial court to instruct the jury. 

The opposite is true. McCoy explicitly recognizes the 

trial court’s discretion and hews to the abuse of 

discretion standard. McCoy, supra at 237. Moreover, it 

provides guidance to when the standard is met. 

McCoy recognizes that it is an abuse of discretion for 

a trial court to refuse to instruct a jury about the 

inherent unreliability of accomplice testimony. Id. at 

236-237. This is consistent with MCL 768.29.6 If the trial 

5 Supra at 240. 

6 MCL 768.29 provides: 

It shall be the duty of the judge to control

all proceedings during the trial, and to limit 

the introduction of evidence and the argument of

counsel to relevant and material matters, with a

view to the expeditious and effective 

ascertainment of the truth regarding the matters

involved. The court shall instruct the jury as to

the law applicable to the case and in his charge

make such comment on the evidence, the testimony

and character of any witnesses, as in his opinion

the interest of justice may require. The failure

6 
 

court fails to give an accomplice instruction, it fails to 

work toward “the expeditious and effective ascertainment of 

the truth regarding the matters involved.” MCL 768.29. 

And it fails to make the comments on the evidence, the 

testimony, and the character of witnesses that justice 

requires. 

As McCoy noted, accomplice testimony is fraught with 

dangers. Whether because of fear, threats, or hostility 

caused by government overreaching or the witness’s greed or 

hopes of leniency occasioned by government deals, 

accomplice testimony has severe credibility problems. 

Given this inherent weakness, a skeptical approach to such 

testimony “'is a mark of the fair administration of 

justice.’” McCoy, supra at 236, quoting 30 Am Jur 2d, 

Evidence, § 1148, p 323. Therefore, a court fails to meet 

the mark of fair administration of justice when it omits a 

requested accomplice instruction. Moreover, the omission 

constitutes an abuse of discretion. 

For the same reason, the McCoy rule does not violate 

the tenets of review for harmless error. Given the 

inherent unreliability of accomplice testimony, any 

conviction based on such testimony, absent a proper 

of the court to instruct on any point of law

shall not be ground for setting aside the verdict

of the jury unless such instruction is requested

by the accused. 

7
 
instruction, will affirmatively appear to be a miscarriage 

of justice. The failure to give the instruction fails to 

meet the mark. We should avoid letting the standards of 

the Michigan criminal justice system fall below this mark. 

The inclusion of the accomplice witness instruction 

ensures the fairness of the trial. Its exclusion, when it 

is merited, undermines the reliability of the verdict. 

Accordingly, the error cannot be harmless. People v 

Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). 

SUA SPONTE INSTRUCTION AND REVIEW FOR PLAIN ERROR 

McCoy states that it may be error requiring reversal 

to fail to give the accomplice instruction if the issue is 

closely drawn, even absent a request from counsel. McCoy, 

supra at 240. The majority attacks this portion of McCoy, 

claiming that it contradicts the established review for 

plain error. A failure to instruct when there was no 

request is subject to review for plain error, the majority 

reasons, because the issue was neither raised nor addressed 

in the trial court. 

For there to be plain error, our Court has decided, 

there must first be an error. Next, the error must be 

clear and obvious. Finally, it must adversely affect the 

defendant’s substantial rights. People v Carines, 460 Mich 

750, 763; 597 NW2d 130 (1999). To warrant reversal, the 

8
 
error must either result in the conviction of an actually 

innocent defendant or it must affect the fairness, 

integrity, or public reputation of the judicial 

proceedings. Id. Again, the McCoy rule fits within the 

confines of these principles. 

The first two elements of the plain error test are 

satisfied if a judge mistakenly fails to give the 

cautionary accomplice instruction. The error exists, and 

it is clear and obvious. The next question is whether the 

error adversely affected the defendant’s substantial 

rights. To determine if an error affects substantial 

rights, the appellate court makes the same inquiry as when 

reviewing for harmless error, except that the defendant 

bears the burden of persuasion. United States v Olano, 507 

US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993). 

The failure to give the cautionary accomplice 

instruction if it is appropriate undermines the reliability 

of any jury verdict. Hence, the error cannot be considered 

harmless. Krueger, supra at 54. This is especially true 

when the case boils down to a closely drawn credibility 

contest. Without basic protections, a criminal trial 

cannot reliably serve as a vehicle for properly determining 

guilt. Arizona v Fulminante, 499 US 279, 310; 111 S Ct 

1246; 113 L Ed 2d 302 (1991). Because this failure to 

9
 
 

 

instruct meets the harmless error standard, it also meets 

the plain error standard. Olano, supra at 734. 

Moreover, such closely drawn cases will likely always 

meet the requirements for reversal. The omission of the 

instruction would mean that the trial court failed to meet 

the mark of the fair administration of justice. McCoy, 

supra at 236. This failure would raise serious questions 

regarding fairness, integrity, or the public reputation of 

the proceedings. Carines, supra at 763. 

Contrary to the majority’s conclusion, McCoy does not 

contradict MCL 769.267

 or MCR 2.516(C).8 MCL 769.26 and MCR 

7 MCL 769.26 provides: 

No judgment or verdict shall be set aside or

reversed or a new trial be granted by any court

of this state in any criminal case, on the ground

of misdirection of the jury, or the improper

admission or rejection of evidence, or for error

as to any matter of pleading or procedure, unless

in the opinion of the court, after an examination

of the entire cause, it shall affirmatively

appear that the error complained of has resulted

in a miscarriage of justice. 

8 MCR 2.516(C) provides: 

Objections. A party may assign as error the

giving of or the failure to give an instruction

only if the party objects on the record before

the jury retires to consider the verdict (or, in

the case of instructions given after 

deliberations have begun, before the jury resumes

deliberations), stating specifically the matter

to which the party objects and the grounds for

the objection. Opportunity must be given to make

the objection out of the hearing of the jury. 

10
 
2.516(C) merely require that a defendant preserve issues 

for review. Those issues not preserved are subject to 

review for plain error. 

McCoy works within the framework of plain error 

review. In overruling it, the majority abandons an 

important protection. 

CONCLUSION 

McCoy does not apply to this case because no 

credibility contest existed and there was insufficient 

evidence to justify characterizing Martin and Lawrence as 

accomplices. Therefore, this case provides an 

inappropriate vehicle for the majority to attack McCoy. 

Moreover, McCoy represents a valid rule of law that fits 

well within the established rules of appellate review. It 

should not be struck down. 

Marilyn Kelly

Michael F. Cavanagh 

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