FILED JULY 1, 2009 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 135435 

HAROLD EMMETT SHAFIER III, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

CAVANAGH, J. 

We granted leave to appeal in this case to determine whether the 

prosecution’s references to defendant’s post-arrest, post-Miranda1 silence violated 

defendant’s constitutional due process rights, and, if so, whether defendant is 

entitled to a new trial.2

 We hold that defendant’s due process rights were violated. 

Further, the violation amounted to plain error that affected defendant’s substantial 

 1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 

2

 The issues in this case are similar to those presented in another case we 

decide today: People v Borgne, ___ Mich ___; ___ NW2d ___ (Docket No. 

134967, issued July 1, 2009). Accordingly, much of the analysis in this opinion is 

very similar, and at times the same, as that in Borgne. However, the cases were 

argued separately and they are distinct enough that we have not combined them in 

one opinion. 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2

rights and seriously affected the fairness and integrity of the trial. We reverse 

defendant’s conviction and remand to the trial court for further proceedings. 

I. BASIC FACTS AND PROCEEDINGS 

Defendant, Harold E. Shafier III, was charged with three counts of firstdegree criminal sexual conduct and two counts of second-degree criminal sexual 

conduct for allegedly sexually assaulting his 13-year-old daughter, AS. Defendant 

and his wife adopted AS and her three sisters in 1995. In January 2005, 

defendant’s wife reported to the police that AS was alleging that she had been 

sexually assaulted by defendant. Defendant was arrested immediately. During the 

arrest, defendant asked why he was being arrested, and the officer told him that he 

was under arrest for criminal sexual conduct. The officer gave him the Miranda 

warnings, and defendant remained silent thereafter. 

At trial, AS testified that defendant sexually assaulted her on a daily basis 

from July 2004 until he was arrested. She testified that the abuse escalated over 

time from kissing and touching to digital penetration and oral sex.3

 She listed a 

few settings where the abuse occurred but initially had some difficulty describing 

specific incidents. AS described one instance in which one of her sisters walked 

in while defendant was performing oral sex on AS. The sister, age 11, testified 

 3

 AS’s allegations escalated over time. Initially, AS told her mother that 

defendant had touched her breasts and genital area. At the preliminary 

examination, AS alleged that there had been incidents involving oral sex. Finally, 

at trial, AS alleged specific incidents that she had not previously mentioned. 
3

and corroborated this story, although there were discrepancies between their 

accounts.4

 Another sister, age 17, testified that she once walked into the family’s 

barn and found AS and defendant standing close to each other and that it appeared 

to her that they were about to kiss or had just been kissing.5

 AS and her sisters 

testified that defendant would sometimes take one or more of the girls to the store 

with him upon their request and buy everyone candy, but that he probably bought 

AS the most candy. Defendant’s wife testified that she thought defendant had 

been favoring AS by taking her shopping and visiting her school. 

Defendant testified in his own defense and adamantly maintained that he 

had never sexually assaulted any of his daughters. He denied the factual 

circumstances of the specific allegations that AS and her sisters made. He stated 

that it would have been physically impossible for the alleged incident of oral sex 

to have occurred in the manner described by AS and her sister because the table 

on which it was supposed to have occurred was covered with boxes at the time. 

Defendant also denied favoring AS. He stated that he had begun stopping at AS’s 

school to check her progress because she was the only child not doing well in 

 4

 The discrepancies were in regard to when the incident occurred, the exact 

physical positions of AS and defendant, and the actions of each of the three people 

after the sister’s interruption. 

5

 This sister also testified that defendant had sexually assaulted her when 

she was younger. At the preliminary examination, she stated that defendant had 

touched her breasts twice, but one of the times was accidental. At trial, she 

alleged for the first time that defendant had regularly touched her, kissed her, and 

digitally penetrated her when she was between the ages of 11 and 13. 
4

school. He testified that, after school, he often took one or more of the children 

shopping with him and would buy candy for any of the children who requested it. 

Defendant testified that he suspected that his wife encouraged their 

daughters to make false allegations against him because she was jealous of the 

time he was spending with their daughters. It is undisputed that up to and during 

the period of the alleged incidents, the relationship between defendant and his 

wife had deteriorated. Defendant testified that he had become increasingly angry 

with his wife’s treatment of the children and consciously decided to become more 

involved in the children’s lives in July 2004. Defendant stated that his wife had 

reacted with jealousy and anger as he increased the time he spent with the girls. 

At trial, the prosecutor referred to defendant’s post-Miranda silence 

multiple times, including in his opening and closing statements, direct and redirect 

examinations of the arresting officer, and cross-examination of defendant. 

Defense counsel objected during the prosecutor’s cross-examination of defendant, 

but the basis for the objection was unclear. 

After two hours of deliberation, the jury announced that it was deadlocked. 

The court instructed the jury to continue to deliberate. On the second day, after 

rehearing portions of the trial testimony, the jury acquitted defendant of three 

counts of first-degree criminal sexual conduct and convicted him of two counts of 

second-degree criminal sexual conduct. 

Defendant appealed, and a divided Court of Appeals panel affirmed his 

convictions. People v Shafier, 277 Mich App 137; 743 NW2d 742 (2007). The 
5

majority held that the prosecutor’s use of defendant’s post-Miranda silence in his 

case-in-chief violated defendant’s constitutional rights, reasoning that the 

prosecutor’s references “were not inadvertent and they were numerous” and that 

“the prosecutor asked the jury to infer that defendant was guilty because he did not 

take the affirmative step of questioning the arresting officer . . . or declaring his 

innocence . . . .” Shafier, 277 Mich App at 140, 142-143. The majority held that 

defendant was not entitled to a new trial, however, because defendant did not 

establish that the violation was plain error affecting his substantial rights. Id. at 

143-144. The Court of Appeals dissent would have granted defendant a new trial 

because “[t]here is no way to know what effect those breaches had on the jurors’ 

minds, particularly considering the jurors’ initial announcement that they were 

deadlocked.” Id. at 145 (Davis, J., dissenting). This Court granted defendant’s 

application for leave to appeal. 

II. STANDARD OF REVIEW 

Defendant raises an unpreserved claim of constitutional error. 

Constitutional questions are reviewed de novo. Sidun v Wayne Co Treasurer, 481 

Mich 503, 508; 751 NW2d 453 (2008). This Court reviews the effect of an 

unpreserved constitutional error under the plain-error standard. People v McNally, 

470 Mich 1, 5; 679 NW2d 301 (2004). 
6

III. ANALYSIS 

A. VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS 

Defendant argues that his constitutional due process rights were violated 

under Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), and its 

progeny. We hold that the prosecution’s repeated references to defendant’s postarrest, post-Miranda silence violated defendant’s due process rights under the 

United States Constitution.6

1. Rule of Doyle v Ohio and its Progeny 

The United States Constitution guarantees that no person “shall be 

compelled in any criminal case to be a witness against himself.” US Const, Am 

V.7

 Miranda v Arizona, 384 US 436, 444-439, 467-468; 86 S Ct 1602; 16 L Ed 2d 

694 (1966), established “guidelines for law enforcement agencies and courts to 

follow” in order to protect the privilege against compelled self-incrimination 

during custodial police interrogations. Thus, under Miranda, every person subject 

to interrogation while in police custody must be warned, among other things, that 

 6

 This Court has recognized that the Michigan Constitution’s protection 

against the use of a defendant’s post-arrest, post-Miranda silence is at least as 

extensive as that provided by the United States Constitution. See People v 

McReavy, 436 Mich 197, 201; 462 NW2d 1 (1990). Because defendant’s due 

process rights were so clearly violated under the United States Constitution in this 

case, however, it is not necessary to evaluate the protection provided by the state 

constitution. 

7

 The Fifth Amendment has been made applicable to the states through the 

Due Process Clause of the Fourteenth Amendment. See Malloy v Hogan, 378 US 

1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964). 
7

the person may choose to remain silent in response to police questioning. Id. at 

444-445. As a general rule, if a person remains silent after being arrested and 

given Miranda warnings, that silence may not be used as evidence against that 

person. Wainwright v Greenfield, 474 US 284, 290-291; 106 S Ct 634; 88 L Ed 

2d 623 (1986). Therefore, in general, prosecutorial references to a defendant’s 

post-arrest, post-Miranda silence violate a defendant’s due process rights under 

the Fourteenth Amendment of the United States Constitution.8

 See Wainwright, 

474 US at 290-291; Doyle, 426 US at 618-620. 

The United States Supreme Court has explained the rationales behind the 

constitutional prohibition against the use of a defendant’s post-arrest, postMiranda silence. To begin with, a defendant’s silence may merely be the 

defendant’s invocation of the right to remain silent, as opposed to a tacit 

acknowledgement of guilt. “[E]very post-arrest silence is insolubly 

 8

 The United States Constitution does not prohibit impeaching a defendant 

with pre-arrest silence. See Fletcher v Weir, 455 US 603, 605-607; 102 S Ct 

1309; 71 L Ed 2d 490 (1982); Jenkins v Anderson, 447 US 231, 239-240; 100 S Ct 

2124; 65 L Ed 2d 86 (1980). Federal courts of appeals are split on whether it 

violates a defendant’s Fifth Amendment rights under the United States 

Constitution for pre-Miranda silence to be used in the prosecution’s case-in-chief. 

See generally Combs v Coyle, 205 F3d 269, 285 (CA 6, 2000) (summarizing the 

position of each circuit for pre-arrest, pre-Miranda silence). See also United 

States v Frazier, 408 F3d 1102, 1111 (CA 8, 2005) (holding that post-arrest, preMiranda silence may be used in the prosecution’s case-in-chief in some 

circumstances); United States v Moore, 322 US App DC 334, 344; 104 F3d 377 

(1997) (holding that post-arrest, pre-Miranda silence may not be used in the 

prosecution’s case-in-chief). This Court has not addressed this issue. See 

McNally, 470 Mich at 7 n 4. These issues are not before this Court today, and this 

opinion has no effect on their resolution. 
8

ambiguous . . . .” Doyle, 426 US at 617. Further, Miranda warnings provide an 

implicit promise that a defendant will not be punished for remaining silent. Id. at 

618. Once the government has assured a person of his right to remain silent, 

“breaching the implied assurance of the Miranda warnings is an affront to the 

fundamental fairness that the Due Process Clause requires.” Wainwright, 474 US 

at 291. 

Consistent with these rationales, a defendant’s post-arrest, post-Miranda 

silence cannot be used to impeach a defendant’s exculpatory testimony, see Doyle, 

or as direct evidence of defendant’s guilt in the prosecutor’s case-in-chief, see 

Wainwright, 474 US at 292-294.9

 “What is impermissible is the evidentiary use of 

an individual’s exercise of his constitutional rights after the State’s assurance that 

the invocation of those rights will not be penalized.” Id. at 295. There are limited 

 9

 In Doyle, the Court held that the prosecution could not use a defendant’s 

post-arrest, post-Miranda silence to impeach the credibility of a defendant’s 

exculpatory testimony. Doyle, 426 US at 618. The prosecution attempted to use 

the defendants’ silence to impeach the credibility of the defendants’ claim, told for 

the first time at trial, that they had been framed. Id. at 611-614. The Court 

reasoned that “it would be fundamentally unfair and a deprivation of due process 

to allow the arrested person’s silence to be used to impeach an explanation 

subsequently offered at trial.” Id. at 618. 

In Wainwright, the Court held that the prosecution could not use a 

defendant’s post-arrest, post-Miranda silence to meet the prosecutor’s burden of 

showing beyond a reasonable doubt that the defendant was not insane. 

Wainwright, 474 US at 286, 289-296. The Court explained that Doyle’s reasoning 

applied with equal force because “[t]he implicit promise, the breach, and the 

consequent penalty are identical in both situations.” Id. at 292. 
9

exceptions to this general rule, but none applies here.10 This Court has adopted 

this understanding of a defendant’s due process rights and stated that post-arrest, 

post-Miranda silence “may not be used substantively or for impeachment purposes 

since there is no way to know after the fact whether it was due to the exercise of 

constitutional rights or to guilty knowledge.” People v McReavy, 436 Mich 197, 

218; 462 NW2d 1 (1990). 

In general, any reference to a defendant’s post-arrest, post-Miranda silence 

is prohibited, but in some circumstances a single reference to a defendant’s silence 

may not amount to a violation of Doyle if the reference is so minimal that “silence 

was not submitted to the jury as evidence from which it was allowed to draw any 

permissible inference . . . .” Greer v Miller, 483 US 756, 764-765; 107 S Ct 3102; 

97 L Ed 2d 618 (1987). See also People v Dennis, 464 Mich 567, 577-580; 628 

NW2d 502 (2001). For example, in Greer, there was no Doyle violation where the 

defense counsel immediately objected to a question by the prosecution about 

defendant’s post-arrest, post-Miranda silence, and the trial court twice gave a 

curative instruction to the jury.11 Greer, 483 US at 759, 764-765. 

 10 For example, in Doyle, the Court noted that the prosecution may use 

evidence of a defendant’s post-arrest, post-Miranda silence to challenge a 

defendant “who testifies to an exculpatory version of events and claims to have 

told the police the same version upon arrest.” Doyle, 426 US at 619 n 11. This 

exception is not applicable here because defendant never claimed that he told the 

police an exculpatory story after he was given his Miranda warnings. 

11 In Greer, the defendant testified that he was innocent, but two other 

people had confessed their guilt to him. Greer, 483 US at 758. On cross-
10

2. Further Background 

In this case, the prosecutor made repeated references to defendant’s postarrest, post-Miranda silence. In the prosecutor’s opening statement, he said that 

the jury would hear that after defendant was arrested, he “didn’t say anything, not 

a word. [The officer] told him why he was being arrested, he was arrested and no 

statements were made.” Next, in the presentation of the case-in-chief, the 

prosecutor deliberately elicited testimony from the arresting officer regarding 

defendant’s post-arrest, post-Miranda silence. The following exchange occurred 

regarding the circumstances of the arrest: 

A. [The Arresting Officer] I asked [defendant] if he knew 

what we were here about—what we were there about and he stated he 

did not. I then placed him under arrest and informed him he was 

under arrest for criminal sexual conduct, advised him of his Miranda

rights which is the right to remain silent and I’m sure we’ve all seen 

that, and I placed him in the rear of my patrol vehicle. He did not 

make any statements to me prior to getting to jail. 

Q. [The Prosecutor] So he never made any statements to you. 

He was fully aware of what you were arresting him for? 

A. Not reference [sic] the criminal sexual conduct, correct. 

On cross-examination, the defense attorney asked the arresting officer questions 

that clarified that the officer did not ask defendant any questions after arresting 

him and giving him his Miranda warnings. On the prosecutor’s redirect 

 

examination, the prosecutor asked the defendant, “‘Why didn’t you tell this story 

to anybody when you got arrested?’” Id. at 759. Defense counsel immediately 

objected, and the trial court sustained the objection and twice instructed the jury to 

ignore the reference. Id.
11

examination, the prosecutor followed up with additional questions regarding 

defendant’s silence: 

Q. [The Prosecutor] [Defendant] didn’t make any statements 

about the CSC charge, did he? 

A. [The Arresting Officer] No, he did not. 

Q. Never asked you about it? 

A. No, he did not. 

After the prosecutor concluded presentation of his case, defendant testified 

in his own defense. Defense counsel asked why defendant was silent after he was 

given his Miranda warnings, and defendant stated that it was because he “watched 

a lot of TV and with something like that I didn’t know what to say, I mean I was 

shocked . . . so I just kept my mouth shut and I was going to wait until I talked to 

somebody.”12 When the prosecutor cross-examined defendant, the following 

exchange occurred: 

 12 The full exchange between defense counsel and defendant regarding 

defendant’s silence was as follows: 

Q. [The Defense Counsel]. Were you nervous [when being 

arrested]? 

A. [Defendant]. Oh yes, scared shit—scared to death. 

Q. Did you—what—you just got silent then? 

A. Yeah, I didn’t say anything, yeah. 

Q. Okay. Why did you not say anything? 
12

Q. [The Prosecutor] [Y]ou didn’t say a single word about 

being arrested for criminal sexual conduct. Is that right? 

A. [Defendant] When I got to the police station— 

Q. Yes or no. Is that right? 

A. Yes. 

Finally, the prosecutor began his closing argument by highlighting the 

significance of defendant’s silence. The prosecutor stated: 

What we heard is that the defendant made no statements. We 

heard that he didn’t ask Officer LaBonte any questions. Why? 

You’re being arrested for CSC. You’re being taken out of your home 

on a Sunday night. Why? Why? Because between June of 2004 and 

January of 2005 the defendant had been making his daughter do 

things that no person speaks about. Adults don’t even talk about it 

between themselves. 

3. Application of Doyle v Ohio and its Progeny 

It is clear that the prosecution’s use of defendant’s silence violated 

defendant’s due process rights under the federal constitution. 

 

A. Just watched a lot of TV and with something like that I 

didn’t know what to say, I mean I was shocked that he even said 

that [I was being arrested for CSC] so I just kept my mouth shut 

and I was going to wait until I talked to somebody. 

Q. Was he [the officer] cooperative with you in talking with 

you or was he pretty short with you? 

A. He just told me what I had to—what he told, what he felt I 

had to know and that was it, yeah. 

Q. Okay. So, he wasn’t volunteering information. 

A. No. 
13

The prosecutor’s examination of the arresting officer established that the 

silence to which the prosecutor referred occurred post-arrest and post-Miranda. A 

reference to a defendant’s post-arrest, post-Miranda silence generally constitutes a 

Doyle violation unless the reference was so minimal that “silence was not 

submitted to the jury as evidence from which it was allowed to draw any 

permissible inference . . . .” Greer, 483 US at 764-765. In this case, the 

prosecution clearly crossed this line by repeatedly using defendant’s post-arrest, 

post-Miranda silence as evidence of defendant’s guilt in its case-in-chief and to 

impeach the defendant’s testimony that he was innocent. The prosecutor 

impliedly asked the jury to infer guilt from defendant’s silence through references 

to defendant’s silence in his opening statement and his examination of the 

arresting officer. In his closing argument, the prosecutor expressly asked the jury 

to infer guilt from defendant’s silence by explaining that the reason defendant had 

been silent was because “the defendant had been making his daughter do things 

that no person speaks about.” Further, in his cross-examination of defendant, the 

prosecutor attempted to use defendant’s silence to impeach defendant’s credibility. 

In sum, the state gave defendant his Miranda warnings, which constituted 

an implicit promise that his choice to remain silent would not be used against him. 

The state then breached that promise by attempting to use defendant’s silence as 

evidence. Depending on the circumstances of the case, even a single reference to 

a defendant’s post-arrest, post-Miranda silence, either as evidence of substantive 

guilt or impeachment, may violate a defendant’s due process rights. Where, as in 
14

this case, the prosecution makes repeated references to a defendant’s silence, both

as substantive evidence of guilt and for purposes of impeachment, the violation is 

clear. Therefore, we affirm the Court of Appeals holding that the prosecutor’s 

repeated references to defendant’s post-arrest, post-Miranda silence violated the 

due process rights guaranteed to defendant by the United States Constitution. 

B. PLAIN-ERROR REVIEW

The Doyle violation in this case is an unpreserved, constitutional error.13 

This Court determines whether this type of error warrants reversal under the plainerror standard of review articulated in People v Grant, 445 Mich 535, 547-553; 

520 NW2d 123 (1994), and People v Carines, 460 Mich 750, 765-766; 597 NW2d 

130 (1999).14 

1. Plain-Error Review 

There are four steps to determining whether an unpreserved claim of error 

warrants reversal under plain-error review. Carines, 460 Mich at 763. First, there 

 13 The Court of Appeals dissent suggests that defendant may have preserved 

this issue. Shafier, 277 Mich App at 144-145 (Davis, J., dissenting). We will not 

address the issue of preservation, however, because the parties agreed that 

defendant failed to preserve an objection to any constitutional error in this case. 

14 I continue to think that this Court erred by adopting the federal plainerror doctrine, for the reasons stated in Justice Levin’s Grant dissent, and erred 

further by extending the doctrine to unpreserved, constitutional error, for the 

reasons stated in then-Justice Kelly’s Carines dissent. See Grant, 445 Mich at 

554-557 (Levin, J., dissenting); Carines, 460 Mich at 775-783 (Kelly, J., 

dissenting). Nonetheless, as I have done in other cases, I recognize that Carines is 

the law in Michigan. See McNally, 470 Mich at 5. 
15

must have been an error. Id. “Deviation from a legal rule is ‘error’ unless the rule 

has been waived.” Grant, 445 Mich at 548 (quotation marks and citation omitted). 

Second, the error must be plain, meaning clear or obvious. Carines, 460 Mich at 

763. Third, the error must have affected substantial rights. Id. This “generally 

requires a showing of prejudice, i.e., that the error affected the outcome of the 

lower court proceedings.”15 Id. The defendant bears the burden of establishing 

prejudice. Id. Fourth, if the first three requirements are met, reversal is only 

warranted if the error “resulted in the conviction of an actually innocent 

defendant” or “seriously affected the fairness, integrity or public reputation of 

judicial proceedings . . . .” Id. (quotation marks and brackets omitted). 

2. Application of Plain-Error Review 

In this case, the four requirements of plain-error review are met, and, 

therefore, reversal is warranted. 

 15 Both this Court and the United States Supreme Court have left open the 

possibility that there is a category of errors for which the third prong of the plainerror standard is automatically met. See Grant, 445 Mich at 551-552, 552 n 30 

(stating that a defendant should establish prejudice in order to avoid forfeiture of 

an unpreserved issue “[e]xcept, of course, in the class of cases in which prejudice 

is presumed”); Carines, 460 Mich at 763 n 8. See also Puckett v United States, 

___ US ___; 129 S Ct 1423, 1432; 173 L Ed 2d 266 (2009) (stating that “[t]his 

Court has several times declined to resolve whether ‘structural’ errors—those that 

affect ‘the framework within which the trial proceeds,’—automatically satisfy the 

third prong of the plain-error test”). In any event, this issue does not arise in this 

case because we agree with the United States Supreme Court’s determination that 

a Doyle violation is not the type of error from which prejudice would generally be 

presumed. See Brecht v Abrahamson, 507 US 619, 629; 113 S Ct 1710; 123 L Ed 

2d 353 (1993). 
16

First, there was an error. Defendant’s due process rights were violated by 

the prosecution’s references to defendant’s post-arrest, post-Miranda silence, and 

defendant did not waive his rights. 

Second, the error was plain. As discussed, the error was an obvious 

violation of a defendant’s due process rights under Doyle and its progeny. 

Third, defendant has shown that the error affected his substantial rights. 

Under the third prong of plain-error review, a defendant must generally show that 

the error was prejudicial. It is difficult for an appellate court to know what effect 

the prosecutor’s repeated use of defendant’s post-Miranda silence might have had 

on the jury. Nonetheless, we hold that defendant has shown that the error is 

prejudicial, considering (1) the extent of the prosecutor’s comments, (2) the extent 

to which the prosecutor attempted to tie defendant’s silence to his guilt, and (3) the 

overall strength of the case against defendant when considered in light of the 

degree to which the jury’s assessment of the evidence might have been affected by 

the prosecutor’s references to defendant’s silence.16 In contrast to the other Doyle 

 16 Federal courts of appeals have considered similar factors when 

evaluating whether a Doyle violation warrants reversal under plain-error review. 

See, e.g., Guam v Veloria, 136 F3d 648, 652 (CA 9, 1998). Plain-error review, as 

articulated in Carines and Grant, is based on the federal courts’ interpretation of 

the FR Crim P 52(b). See Carines, 460 Mich at 762-766; Grant, 445 Mich at 547-

550, 552-553. Although Michigan courts are of course not bound by the federal 

courts’ application of FR Crim P 52(b), and plain-error review is an inevitably 

case-specific and fact-intensive inquiry, we find the factors used by the federal 

courts of appeals useful for plain-error review in this case. While Veloria was a 

“plain error” case, the factors used there to evaluate the effect of a Doyle error on 

a trial are traceable to United States v Newman, 943 F2d 1155 (CA 9, 1991), 
17

case we decide today, People v Borgne, ___ Mich ___; ___ NW2d ___ (Docket 

No. 134967, issued July 1, 2009), in which we consider these same factors, the 

error in this case was clearly prejudicial. 

To begin with, the more extensive a prosecutor’s references to a 

defendant’s post-arrest, post-Miranda silence, the more likely it is that the 

references had a prejudicial effect. In this case, the prosecutor’s references to 

defendant’s silence were frequent throughout the trial, from the prosecutor’s 

opening and closing statements, to his case-in-chief, to his cross-examination of 

defendant. The pervasiveness of the prosecutor’s references to defendant’s silence 

increases the likelihood that the references had a prejudicial effect. 

Further, a prosecutor’s references to a defendant’s post-arrest, postMiranda silence are more likely to be prejudicial the more directly or explicitly 

the prosecutor uses the silence to challenge a defendant’s credibility or show a 

defendant’s guilt. In this case, the references to defendant’s post-arrest silence 

were not inadvertent references that the jury might not have connected to 

defendant’s guilt. Instead, the prosecutor referred to defendant’s silence in a 

manner that deliberately challenged defendant’s credibility and his claim of 

innocence. In addition, the prosecutor impliedly suggested that defendant’s 

 

which applied the “harmless beyond a reasonable doubt” standard from Chapman 

v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). In footnote 9 of 

Carines, this Court distinguished “plain error” review from “harmless error” 

review. Carines, 460 Mich at 764 n 9. We do not intend to nullify that distinction 

by our use of the Veloria test. 
18

silence was evidence of his guilt and even explicitly asked the jury to infer guilt 

from defendant’s silence in his closing argument. In comparison, in Borgne, the 

prosecutor did use the defendant’s silence to challenge the credibility of 

defendant’s exculpatory story, but he did not go so far as to explicitly or impliedly 

suggest to the jury that it should infer guilt from the silence.17

Finally, the degree to which prosecutorial references to a defendant’s postarrest, post-Miranda silence are prejudicial depends on the overall strength of the 

case against the defendant and the degree to which the jury’s assessment of the 

evidence might have been affected by the prosecutor’s references to a defendant’s 

silence. In this case, the strength of the prosecutor’s overall case against 

defendant hinged entirely on the jury’s assessments of the witnesses’ credibility. 

It consisted mainly of AS’s testimony and the corroborating testimony of her 

sisters, but the sisters’ testimony conflicted at times with AS’s. The jury’s 

acquittal of defendant on the charges of first-degree criminal sexual conduct 

suggests that at least some of the jurors questioned AS’s credibility as compared to 

defendant’s, even with the prosecutor’s impermissible references to defendant’s 

silence. The trial was essentially a credibility contest between defendant and AS 

and her sisters, and the prosecutor’s repeated references to defendant’s silence 

 17 This comparison is not intended to suggest that a defendant’s silence 

must be used in the prosecutor’s case-in-chief in order to be prejudicial; it is 

certainly conceivable that the use of a defendant’s silence only for impeachment 

purposes could be prejudicial, depending on a case’s circumstances. See, e.g., 

Veloria, 136 F3d at 652-653. 
19

might have undermined defendant’s credibility. In contrast, in Borgne, the degree 

to which the jury would have found much of the evidence credible was not directly 

affected by the prosecutor’s references to the defendant’s silence. Specifically, the 

prosecution in Borgne presented physical evidence against the defendant and 

eyewitness testimony corroborating the victim’s account of the events. 

In sum, in this case, in light of the prosecutor’s extensive references to 

defendant’s silence, the extensive connection of that silence to defendant’s guilt, 

the inconsistencies in the prosecutor’s case and the other evidence presented 

against him, and the nature of defendant’s defense—which hinged on his own 

credibility, we hold that the error was prejudicial.18 

Fourth, there is no question that this is the sort of error that compromises 

the fairness, integrity, and truth-seeking function of a jury trial. The violation of 

defendant’s due process rights rendered the trial fundamentally unfair and cast a 

shadow on the integrity of our state’s judicial processes. Therefore, all four 

requirements of plain-error review are met, and reversal is warranted. 

IV. CONCLUSION 

 The prosecutor’s references to defendant’s post-arrest, post-Miranda 

silence violated defendant’s due process rights under the federal constitution. The 

 18 We note that, under the circumstances of this case, defense counsel’s 

attempts during trial to lessen the impact of the Doyle errors by asking defendant 

why he did not make statements before trial, did not waive the error, cure it, or 

render it harmless. 
20

violation amounts to plain error that affected defendant’s substantial rights, and it 

compromised the fairness, integrity, and public reputation of the judicial 

proceedings. Therefore, we reverse defendant’s conviction and remand to the trial 

court for further proceedings. 

Michael F. Cavanagh 

Marilyn Kelly 

Elizabeth A. Weaver 

Maura D. Corrigan 

Stephen J. Markman 

Diane M. Hathaway 
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, 

v No. 135435 

HAROLD EMMETT SHAFIER III, 

 Defendant-Appellant. 

KELLY, C.J. (concurring). 

I concur with the majority opinion. However, I continue to believe that this 

Court should not have extended the plain-error doctrine to the kind of unpreserved 

constitutional error present in this case. As I stated in my dissent in People v 

Carines, I believe that, when there is unpreserved constitutional error, a 

defendant’s conviction should be affirmed only “‘if the reviewing court is satisfied 

that the error is harmless beyond a reasonable doubt.’”1

It appears that, under the Carines plain error standard, there is never error 

requiring reversal when there is a “wealth of incriminating evidence.”2

 Under 

 1 People v Carines, 460 Mich 750, 778; 597 NW2d 130 (1999) (Kelly, J., 

dissenting), quoting People v Graves, 458 Mich 756, 482; 581 NW2d 229 (1998). 

2 People v Borgne, ___ Mich ___, ___ NW2d ___, issued June 24, 2009 

(Docket No. 134967) slip op at 26. 
2

those circumstances, the judicial system essentially exempts criminal defendants 

from the constitutional right to due process of law. 

In the interest of preserving the integrity of the judicial system, we should 

re-elevate due process to its proper place. The present blatant and repeated 

abrogation of people’s constitutional rights threatens the foundation of the court 

system. 

I recognize that Carines remains the law in Michigan and cannot be 

ignored, but I believe the Court should reexamine it at the earliest possible 

moment. 

Marilyn Kelly 
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, 

v No. 135435 

HAROLD EMMETT SHAFIER III, 

 Defendant-Appellee. 

YOUNG, J. (concurring). 

I concur in the result and analysis of the majority opinion. I write 

separately because I will not join footnote 14, in which Justice Cavanagh 

“dissents” from the Carines1 plain-error analysis in his own opinion. Justice 

Cavanagh is entitled to such views, but his opposition to this Court’s precedent 

and preservation of his view is better placed in a concurring statement. 

Robert P. Young, Jr. 

 1 People v Carines, 460 Mich 750; 597 NW2d 130 (1999).