_______________________________ 

 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor 

Robert P. Young, Jr. Opinion Stephen J. Markman 

FILED JULY 1, 2004 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v No. 118021 

ERIC BOYD, 

Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

CORRIGAN, C.J. 

In this case, we consider whether a defendant must 

testify in order to preserve for appellate review a 

challenge to a trial court’s ruling in limine allowing 

evidence that the defendant exercised his Miranda1

 right to 

remain silent. In Luce v United States, 469 US 38, 43; 105 

S Ct 460; 83 L Ed 2d 443 (1984), the United States Supreme 

Court held that a defendant must testify to preserve for 

appeal a challenge to a ruling in limine involving 

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed

2d 694 (1966). 
 

impeachment with prior convictions. We adopted the Luce 

rule in People v Finley, 431 Mich 506; 431 NW2d 19 (1988) 

(opinions by RILEY, C.J., and by BRICKLEY, J., concurring in 

part),2

 which also involved impeachment by prior 

convictions. 

Because the same reasons for requiring a defendant to 

testify to preserve a challenge to pretrial evidentiary 

rulings in Luce and Finley apply in the circumstances of 

this case, we extend the rule from Luce and Finley to the 

errors alleged here. We hold that defendant was required 

to testify to preserve for review his challenge to the 

trial court’s ruling in limine allowing the prosecutor to 

admit evidence of defendant’s exercise of his Miranda right 

to remain silent. Because the statement at issue in this 

case would have been properly admissible in one context, 

defendant’s failure to testify precludes us from being able 

2 Despite the dissent’s contention that we 

mischaracterize the holding of the Finley Court, post at 1-

3, a majority of this Court in Finley adopted the rule

announced in Luce. Justices BOYLE and GRIFFIN joined Chief

Justice RILEY’s lead opinion, and Justice BRICKLEY concurred 

in the lead opinion’s adoption of the Luce rule, as the

dissent correctly recognizes. Finley, supra at 526 

(opinion by BRICKLEY, J.). Contrary to the dissent’s 

assertion, we do not contend that Justice BRICKLEY agreed

with every aspect of the lead opinion, but rather, that he

“concurred with the adoption of the rule as defined in

Luce.” Post at 2. 

2
 
to determine whether the trial court’s ruling was erroneous 

and, if so, whether the error requires reversal. We thus 

affirm the judgment of the Court of Appeals holding that 

defendant was required to testify to preserve his challenge 

for appellate review. 

I. UNDERLYING FACTS AND PROCEDURAL HISTORY 

On June 14, 1997, the twelve-year-old victim attended 

a barbeque at a neighbor’s apartment in the building where 

defendant lived. The victim testified that defendant 

grabbed her at the barbeque, took her to his apartment, and 

had sexual intercourse with her. She told her friend, an 

eleven-year-old girl, about the assault immediately 

thereafter, but did not tell her father about it until a 

week later. Her father then called the police and took her 

for a medical examination. The results of the examination 

were inconclusive regarding penetration because of the 

interval between the alleged penetration and the 

examination. 

Police arrested defendant shortly after the victim’s 

father reported the incident. Defendant furnished a 

statement to police after being advised of his Miranda 

rights. After defendant answered five or six questions, 

the police officer asked him, “When you last saw her [the 

victim], how many times did you have sex with her?” 

3
 
Defendant responded, “I am taking the fifth on that one.” 

The officer immediately ended the interrogation. 

The prosecutor charged defendant with first-degree 

criminal sexual conduct, MCL 750.520b(1)(a) (sexual 

penetration of victim under thirteen years of age). 

Immediately before trial, defendant moved in limine to 

exclude that portion of his statement in which he asserted 

his Miranda right to remain silent. The prosecutor opposed 

the motion, arguing that the entire statement was 

admissible. The trial court ruled that defendant’s entire 

statement was admissible. 

Despite this ruling, the prosecutor never sought to 

admit defendant’s statement into evidence and did not refer 

to the statement during opening or closing argument. 

Defendant elected not to testify, but the record does not 

reflect the reason for his decision. Defendant’s brother 

testified that defendant had been with him at the apartment 

at the time of the alleged assault and that no assault 

occurred. The young female friend of the complainant 

testified that the victim told her about the assault 

immediately after it had occurred. The friend also 

testified that the victim was crying, her clothes were 

“messed up,” and she was missing a pair of shorts. 

4
 
 

 

The jury convicted defendant of second-degree criminal 

sexual conduct, MCL 750.520c, and the trial court sentenced 

him to a ten- to fifteen-year term of imprisonment. 

The Court of Appeals affirmed.3 Defendant argued, 

inter alia, that his decision not to testify at trial was 

based on the trial court’s erroneous ruling in limine 

allowing the prosecutor to use the assertion of his Miranda 

right to remain silent against him. The Court of Appeals 

agreed that the trial court’s ruling was erroneous, but, 

citing Finley, held that reversal was not required because 

defendant did not testify and the evidence was never 

admitted. The Court declined to assume that defendant 

chose not to testify “out of fear of impeachment.” It also 

concluded that the evidence against defendant was 

overwhelming and that any error was harmless beyond a 

reasonable doubt. 

We granted defendant’s application for leave to 

appeal.4 

3 Unpublished opinion per curiam, issued September 15,

2000 (Docket No. 214097). 

4 467 Mich 920 (2002). 

5
 
II. STANDARD OF REVIEW 

This case requires us to determine whether a defendant 

must testify in order to preserve for appellate review a 

challenge to a ruling in limine allowing admission of his 

exercise of his silence. We review de novo this question 

of law. People v Mendoza, 468 Mich 527, 531; 664 NW2d 685 

(2003). 

III. ANALYSIS 

A. Luce and Finley 

In circumstances analogous to the instant factual 

scenario, the United States Supreme Court held that a 

defendant must testify to preserve for appeal the issue of 

improper impeachment by prior convictions. Luce, supra at 

43. In Luce, the petitioner sought to preclude the use of 

a prior conviction to impeach his testimony. The trial 

court ruled that the prior conviction was admissible under 

FRE 609(a). The petitioner did not testify and was 

convicted. Luce, supra at 39-40. 

The Supreme Court upheld the convictions, citing 

numerous reasons for requiring the petitioner to testify to 

preserve his challenge to the pretrial evidentiary ruling. 

First, the Court reasoned that if the petitioner had 

testified and been impeached with the prior conviction, the 

trial court’s decision admitting the evidence would have 

6
 
been reviewable on appeal. Id. at 41. The Court 

recognized the difficulty inherent in reviewing an 

evidentiary ruling outside a factual context, particularly 

because FRE 609(a)(1) required a reviewing court to weigh 

the probative value of a prior conviction against its 

prejudicial effect. To perform this balancing test, the 

Court opined, a reviewing court must know the precise 

nature of the defendant’s testimony, which is unknown 

unless he testifies. Luce, supra at 41. The Court 

rejected the notion that an offer of proof would be 

sufficient because a defendant’s trial testimony could 

differ from the proffer. Id. at n 5. 

Second, the Court recognized that any possible harm 

from a trial court’s ruling in limine allowing impeachment 

with prior convictions is wholly speculative in the absence 

of the defendant’s testimony. The Court opined that such a 

ruling is subject to change depending on how the case 

unfolds at trial and that a court, exercising sound 

judicial discretion, could modify a previous ruling in 

limine. The Court also stated that without a defendant’s 

testimony, a reviewing court has no way of knowing whether 

the prosecutor would have sought to introduce the prior 

conviction for impeachment. For example, if the 

prosecutor’s case is strong and other means of impeachment 

7
 
are available, the prosecutor may choose not to use an 

arguably inadmissible prior conviction. Id. at 41-42. 

Third, the Court reasoned that appellate courts cannot 

assume that an adverse pretrial ruling motivated a 

defendant’s decision not to testify. The Court rejected 

the notion that a defendant could commit to testifying if 

his motion is granted because such a commitment is 

relatively risk-free and difficult to enforce. Id. at 42. 

In addition, the Court acknowledged the problem 

involving application of a harmless error analysis because 

“the appellate court could not logically term ‘harmless’ an 

error that presumptively kept the defendant from 

testifying.” Id. Thus, nearly every error would 

automatically require reversal. Finally, the Court opined 

that requiring defendants to testify enables reviewing 

courts to assess the effect of any erroneous impeachment in 

light of the entire record and tends to discourage 

gamesmanship whereby a defendant’s motion operates solely 

to “plant” error requiring reversal on appeal. Id. 

In Finley, a majority of this Court adopted the Luce 

rule. We observed that the purpose of the rule is to 

provide for meaningful appellate review of a ruling in 

limine allowing impeachment by prior convictions. Finley, 

supra at 512 (opinion of RILEY, C.J.). The lead opinion 

8
 
 

stated that “error does not occur until error occurs; that 

is, until the evidence is admitted.” Id. It further 

stated that even if an offer of proof is made and evidence 

is erroneously deemed admissible, error requiring reversal 

does not arise until the evidence is actually introduced. 

The lead opinion then reiterated the reasons stated in Luce 

favoring the rule requiring a defendant’s testimony to 

preserve the issue for appellate review. Id. at 512-513. 

B. Extension of the Luce and Finley Rule 

Many courts have extended the rule announced in Luce 

and adopted in Finley to contexts other than those 

involving impeachment by prior convictions.5 In United 

5 Many of these cases involve federal rules of evidence

other than FRE 609(a), the rule at issue in Luce. See, 

e.g., United States v Sanderson, 966 F2d 184, 190 (CA 6,

1992) (“[A]n appeal of a Rule 608(b) ruling is precluded

where the defendant did not testify at trial.”); United 

States v Ortiz, 857 F2d 900, 906 (CA 2, 1988) (the 

defendant waived his challenge to the trial court’s adverse

ruling in limine on Rule 404(b) motion by failing to insist

on right to fully present “personal use” argument at 

trial); United States v Griffin, 818 F2d 97, 103-105 (CA 1,

1987) (“[T]o raise and preserve for review the claim of

improperly constructing the Rule 403 balance, a party must

obtain the order admitting or excluding the controversial

evidence in the actual setting of the trial” and may not

rely on a trial court’s mere ruling in limine.); United 

States v Weichert, 783 F2d 23, 25 (CA 2, 1986) (By failing

to testify at trial, challenge to the trial court’s ruling

in limine under Rule 608(b) was not preserved for review.);

United States v Johnson, 767 F2d 1259, 1270 (CA 8, 1985)

(“Although Luce was decided under Fed. R. Evid. 609(a)(1),

Footnotes continued on following page. 

9
 
 

its logic applies with equal force to motions under Rule

404.”). 

In addition, the dissent cites Professor Duane for the

proposition that the United States Supreme Court has been

“reluctant to give Luce any precedential value,” post at 

11. To the contrary, the Court has rather recently

accorded such value to Luce in Ohler v United States, 529

US 753, 759; 120 S Ct 1851; 146 L Ed 2d 826 (2000), a case

in which the Court held that once a defendant―not the 

government―introduces evidence of a prior conviction, the

defendant waives any right to appeal the trial court’s

ruling in limine permitting the government to admit that

conviction for purposes of impeachment. Moreover, although

four justices dissented, concluding that Luce was 

inapplicable because the defendant had testified and thus

the harm was not “wholly speculative,” Luce, supra at 41,

those justices also appeared implicitly to recognize the 

importance of Luce: 

An appellate court can neither determine why

a defendant refused to testify, nor compare the

actual trial with the one that would have 

occurred if the accused had taken the stand. 

With unavoidable uncertainty about whether and

how much the in limine ruling harmed the 

defendant, and whether it affected the trial at

all, a rule allowing a silent defendant to appeal

would require courts either to attempt wholly

speculative harmless-error analysis, or to grant

new trials to some defendants who were not harmed 

by the ruling, and to some who never even 

intended to testify. Ohler, supra at 760-761. 

(Souter, J., dissenting). 

Although the dissent states that the United States

Supreme Court in Ohler “begrudgingly” cited Luce, post at 

14, nothing in Ohler’s majority or dissenting opinion 

supports that assertion. Further, our reliance on Ohler is 

not “misplaced.” Post at 14. Neither the majority nor the

dissent in Ohler questioned Luce’s continuing validity.

Rather, the Court decided that Luce was inapplicable.

Ohler simply does not state that the United States Supreme

Court has been reluctant to accord Luce precedential

effect. 

10
 
States v Wilson, 307 F3d 596, 598 (CA 7, 2002), the 

defendant moved in limine to preclude the prosecutor from 

introducing evidence of his postarrest “selective silence.” 

After waiving his Miranda rights, the defendant answered a 

series of questions, but expressly refused to provide the 

name of his associate. Id. The trial court granted the 

motion in part, ruling that the prosecution could not use 

the defendant’s silence against him in its case-in-chief. 

During trial, the defendant sought to admit evidence 

regarding the associate, but the court ruled that if 

defendant raised the matter, the prosecutor would be 

permitted to introduce evidence of the defendant’s refusal 

to name the associate during questioning. The defendant 

opted not to raise the issue. Id. at 598-600. 

On appeal, the defendant argued that the trial court’s 

ruling allowing the prosecutor to introduce evidence of his 

“selective silence” violated his Fifth Amendment privilege 

against self-incrimination. Id. at 599. Relying on Luce 

and the line of cases extending the Luce holding beyond FRE 

609, the court declined to review the defendant’s claim on 

the merits. The court stated that because the defendant 

exercised his right to refrain from introducing certain 

evidence at trial, he “cannot now attack a potential 

11
 
introduction of evidence by the government in response to 

his potential testimony.” Id. at 601. 

United States v Bond, 87 F3d 695 (CA 5, 1996), also 

involved a defendant’s Fifth Amendment privilege against 

self-incrimination. In that case, the defendant challenged 

the magistrate’s ruling that if he testified regarding the 

terms of a plea bargain, he would waive his privilege 

against self-incrimination regarding all grounds asserted 

in his motion to withdraw his guilty plea. The appellate 

court determined that the same practical considerations as 

in Luce were present, including the difficulty inherent in 

determining whether the defendant’s testimony could be 

limited in accordance with his motion without actually 

hearing the testimony. The court recognized that other 

courts have refused to limit the Luce rule to Rule 609(a) 

situations and have instead applied the Luce rule in 

analogous contexts. Id. at 700-701. 

C. Application of the Luce Rule to the Facts in this 

Case 

As in Wilson and Bond, we must determine here whether 

to extend the Luce rule to defendant’s invocation of his 

Miranda right to remain silent. Defendant and the dissent 

contend that the logic of Luce and Finley does not apply 

because the alleged error has constitutional implications. 

12
 
 

The alleged errors in Wilson and Bond, however, also had 

constitutional implications. In fact, the purported errors 

in those cases involved the same constitutional right at 

issue in this case, i.e., the Fifth Amendment privilege 

against self-incrimination. 

The dissent and defendant further fail to appreciate 

the constitutional implications present in Luce, Finley, 

and every case in which a defendant alleges that a trial 

court’s ruling effectively prevented him from testifying. 

A defendant’s right to testify in his own defense stems 

from the Fifth, Sixth, and Fourteenth amendments of the 

United States Constitution. Rock v Arkansas, 483 US 44, 

51-52; 107 S Ct 2704; 97 L Ed 2d 37 (1987). Thus, a trial 

court’s ruling affecting a defendant’s right to testify 

necessarily has constitutional implications.6 The lead 

opinion in Finley correctly stated, “A ruling in limine on 

impeachment by prior convictions does not present 

constitutional implications.” Finley, supra at 514. The 

effect of such a ruling on a defendant’s right to testify, 

however, does present constitutional implications. 

6 While the United States Supreme Court did not decide

Rock until after it decided Luce, its decision in Rock made 

clear that a defendant’s challenge involving his right to

testify in his own defense is one of constitutional 

magnitude. 

13
 
Therefore, the distinction that the dissent attempts to 

draw between this case and Finley is illusory. Any ruling, 

even if on a mere evidentiary issue, necessarily affects a 

defendant’s constitutional rights if it has a chilling 

effect on the exercise of the right to testify. 

Defendant further asserts that, because his invocation 

of his Miranda right to remain silent could never be 

admitted at trial, the trial court’s ruling in limine that 

his statement was admissible constituted error that could 

never be harmless. Defendant’s argument is premised on the 

erroneous assumption that his invocation of his privilege 

against self-incrimination could never be admissible. 

Under Doyle v Ohio, 426 US 610, 619; 96 S Ct 2240; 49 L Ed 

2d 91 (1976), and People v Bobo, 390 Mich 355, 359; 212 

NW2d 190 (1973), however, defendant’s “taking the fifth” 

statement would have been properly admissible in one 

context. The United States Supreme Court held in Doyle, 

supra at 619, “that the use for impeachment purposes of 

petitioners’ silence at the time of arrest and after 

receiving Miranda warnings, violate[s] the Due Process 

Clause of the Fourteenth Amendment.” The Court recognized, 

however, that “the fact of post-arrest silence could be 

used by the prosecution to contradict a defendant who 

testifies to an exculpatory version of events and claims to 

14
 
 

 

have told the police the same version upon arrest.” Id. at 

619 n 11. 

Similarly, in Bobo, this Court held that the 

prosecution could not introduce a defendant’s postarrest 

silence to impeach his exculpatory testimony at trial. 

Bobo, supra at 359. We cautioned, however, that this rule 

was not an absolute ban on the use of post-Miranda silence 

and stated that “[t]he fact that a witness did not make a 

statement may be shown only to contradict his assertion 

that he did.”7 Id.; see also People v Dennis, 464 Mich 567, 

573 n 5; 628 NW2d 502 (2001), citing Doyle, supra at 619 n 

11. 

If defendant had offered exculpatory testimony at 

trial and claimed to have told his exculpatory story to the 

police in response to questioning, his silence would have 

been admissible for impeachment purposes. As this Court 

recently stated in Dennis, Doyle does not apply where “a 

defendant testifies to having earlier provided an 

exculpatory version of events to the police and the 

prosecution offers evidence of defendant’s silence to rebut 

7 In People v Collier, 426 Mich 23, 39; 393 NW2d 346

(1986), this Court confined Bobo “to impeachment for and

comment on silence at the time of arrest in the face of 

accusation.” See also People v Hackett, 460 Mich 202, 215

n 6; 596 NW2d 107 (1999). 

15
 
 

 

such a claim.” Dennis, supra at 573 n 5.8 Thus, 

defendant’s contention that his “taking the fifth” 

statement would never have been admissible is incorrect.9 

Rather, the statement’s admissibility would depend on the 

context in which the prosecutor had sought to admit it.10 

Because the admissibility of post-Miranda silence 

depends on the factual setting in which the prosecutor 

seeks to admit it, we are faced with the same problem 

encountered in Luce and Finley, i.e., that defendant’s 

8

 See also People v Sutton (After Remand), 436 Mich

575, 579; 464 NW2d 276 (1990) (“Where a defendant claims

that he gave an exculpatory statement to the police after

arrest and warnings, neither Bobo nor any federal 

constitutional authority would preclude impeachment with

prior inconsistent conduct, including silence.”). 

9 We are not presented with a situation in which

defendant’s statement would never have been admissible, and

we express no opinion regarding whether a claim of error

would be reviewable in that instance absent a defendant’s 

testimony at trial. 

10 For this reason, the dissent’s contention that our

holding “requires the defendant to choose which 

constitutional right to give up, his Fifth Amendment right

to post-Miranda silence or his Fifth Amendment right not to

testify,” is misleading. Post at 16-17. Because a 

defendant may, in a certain circumstance, testify and 

properly be impeached with his post-Miranda silence without 

offending constitutional protections, he is not necessarily

forced to give up either his Fifth Amendment privilege

against self-incrimination or his Miranda right to remain

silent. In fact, this argument supports the notion that a

defendant must testify in order to determine whether any

error occurred at all. 

16
 
claim of error is wholly speculative. Not only could the 

statement have been admitted to contradict a defendant who 

testified about an exculpatory version of events and claims 

to have told the police that version upon his arrest, but, 

as Luce suggests, it might not have been admitted at all, 

even if defendant had testified. As the Luce Court 

recognized, the trial court could have ultimately concluded 

that the statement was inadmissible, or the prosecution 

could have changed its trial strategy and not sought to 

admit the statement. 

In addition, as Luce recognized, we cannot assume that 

the possible introduction of the “taking the fifth” 

statement motivated defendant’s decision not to testify. 

The Luce Court rejected the notion that appellate courts 

can properly discern the effect of a ruling in limine on a 

defendant’s trial strategy. Luce, supra at 42. Thus, it 

is equally possible that defendant simply chose to present 

his defense through his brother’s testimony, which 

contradicted the complainant’s allegations, rather than to 

testify himself and be subject to cross-examination. 

Because numerous factors undoubtedly influence a 

defendant’s decision whether to testify, we refuse to 

speculate regarding what effect, if any, a ruling in limine 

may have had on this decision. 

17
 
Defendant cites State v Lamb, 84 NC App 569, 580-581; 

353 SE2d 857 (1987), quoting United States v Lipscomb, 226 

US App DC 312, 332; 702 F2d 1049 (1983), for the 

proposition that “when a defendant seeks an advance ruling 

on admission of a prior conviction, it is reasonable to 

presume that the ruling will be an important factor in his 

decision whether to testify.” The Lamb court, however, 

failed to acknowledge that a rule allowing appeals based on 

evidence contested in limine but never introduced at trial 

is subject to abuse. For example, a defendant could move 

in limine to exclude a number of prior statements, all the 

while never intending to testify. The Luce Court 

recognized this potential for abuse, stating that its rule 

“will also tend to discourage making [motions] solely to 

‘plant’ [error requiring reversal] in the event of 

conviction.” Luce, supra at 42. Thus, we find defendant’s 

reliance on Lamb unpersuasive. 

Further, unlike the dissent, we appreciate the 

difficulty inherent in evaluating a trial court’s ruling on 

a motion in limine when the evidence is never actually 

admitted. The dissent would have us review defendant’s 

claim of error in a vacuum and engage in speculation 

regarding whether the statement would have been properly 

admissible. The speculative exercise that the dissent 

18
 
 

offers, post at 23-24, is exactly what we are seeking to 

avoid. Often, a factual record is necessary to determine 

the soundness of the trial court’s ruling if for no other 

reason than to conduct a harmless error analysis. 

Extension of the Luce and Finley rule to the instant 

circumstance ensures that appellate courts are not forced 

to entertain abstract allegations of error. 

Because the practical considerations extant in Luce 

and Finley of evaluating theoretical error in the absence 

of a defendant’s testimony are also present in this case, 

we follow the lead of Wilson and Bond and extend the Luce 

rule to encompass alleged error implicating a defendant’s 

Fifth Amendment privilege against self-incrimination. 

Thus, to preserve for appellate review a challenge to a 

trial court’s ruling in limine allowing into evidence a 

defendant’s exercise of his Fifth Amendment privilege, the 

defendant must testify at trial. Because the statement at 

issue in this case would have been properly admissible in 

one context, it is impossible to determine whether the 

trial court’s ruling was erroneous.11 Accordingly, we are 

unable to review defendant’s allegation of error. 

11 Although we review claims of error under the 

standard announced in People v Carines, 460 Mich 750, 763;

Footnotes continued on following page. 

19
 
 

IV. CONCLUSION 

We conclude that defendant was required to testify to 

preserve for review his challenge to the trial court’s 

ruling in limine allowing the prosecutor to admit evidence 

of defendant’s exercise of his Miranda right to remain 

silent. Because the statement at issue in this case would 

have been properly admissible in one context, defendant’s 

failure to testify precludes us from being able to 

determine whether the trial court’s ruling was erroneous 

and, if so, whether the error requires reversal. 

Accordingly, we affirm the judgment of the Court of 

Appeals.12 

Maura D. Corrigan

Elizabeth A. Weaver 

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman 

597 NW2d 130 (1999), that standard applies only when an

error exists. Because defendant’s decision not to testify

prevents us from being able to determine whether the trial

court’s ruling was erroneous, the Carines plain error 

standard is inapplicable. 

12 The dissent criticizes our opinion for declining to

review the sentencing issue that defendant raised in his

application for leave to appeal. Post at 26-27. Defendant 

has abandoned that issue by failing to address it in his

brief on appeal in this Court. Steward v Panek, 251 Mich

App 546, 558; 652 NW2d 232 (2002). 

20
 
_______________________________ 

 

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. 118021 

ERIC BOYD, 

Defendant-Appellant. 

KELLY, J. (dissenting). 

I would not extend the ruling in Luce v United States1 

and People v Finley2 to this case. I find that the trial 

court's error here was plain enough to require reversal, 

despite defendant's decision not to testify. Therefore, I 

would reverse the Court of Appeals decision and remand this 

case for a new trial. 

The Majority Mischaracterizes Finley 

Finley does not stand for anything more than a 

specific application of Luce. It holds that, to preserve a 

claim of error concerning improper impeachment by prior 

1

Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed

2d 443 (1984). 

2

People v Finley, 431 Mich 506; 431 NW2d 19 (1988). 
convictions under MRE 609, a defendant must testify. 

Although Justices Boyle and Griffin joined Chief Justice 

Riley's lead opinion, Justice Brickley joined only part of 

it. Finley, supra at 526-531. He concurred with the 

adoption of the rule as defined in Luce. However, he 

disagreed with certain elements of the opinion. Finley, 

supra at 526. One of his specific concerns was that it 

used overly broad language in obiter dictum. Id. at 530. 

He wrote that the lead opinion had no authority for its 

statement that 

“the straightforward logic of Luce . . . is that 

as to evidentiary rulings, error does not occur

until error occurs; that is, until the evidence

is admitted. Obviously, in other contexts, if an

offer of proof is made and the court erroneously

permits the introduction of hearsay, character

evidence, similar acts, or the myriad of evidence

objectionable under the MRE, there is no error

requiring reversal unless the evidence actually

is introduced.” [Id., quoting lead opinion at

512.] 

He also noted that “the notion that reviewable error 

does not occur until admission of the challenged evidence 

does not square with actual practice.” Id. at 531. 

Interlocutory appeals are regularly taken on

evidentiary questions and pretrial rulings are

often deemed erroneous in spite of the fact that

their effect has not yet been felt at trial.

[Id.] 

He cautioned that “[e]rror can also occur at

trial in varying forms, and the Court should not

be so quick to define a universal principle, 

2
 
particularly since the specific grounds for the

adoption of the Luce requirement are so clearly

explained by the Chief Justice.” Id. 

Thus, although Justice Brickley supported the adoption 

of Luce, he agreed to only a limited adoption of its 

principle. He left no doubt that he would not apply Finley 

beyond its specific grounds. 

Justice Cavanagh concurred in the result, but 

dissented from the rationale of the lead opinion with one 

exception noted below. Id. at 531-544. Justices Levin and 

Archer concurred in Justice Brickley's opinion, "except for 

the language of his opinion concurring in the language of 

the plurality opinion that fails to recognize that a 

defendant who wishes to preserve for appeal an adverse 

ruling on the admission of a prior conviction record may do 

so by testifying outside the presence of the jury." Id. at 

557-558 (Levin, J.). 

Therefore, the majority in this case incorrectly cites 

the Finley lead opinion for the proposition that "’error 

does not occur until . . . the evidence is admitted.’" 

Ante at 9 quoting id., p 512 (Riley, C.J.). Finley does 

not hold that if an offer of proof is made and the evidence 

is erroneously deemed admissible, there is no error 

requiring reversal unless the evidence is actually 

introduced. Ante at 8. 

3
 
 

Contrary to the majority's citation here, four Finley 

justices rejected the lead opinion's sweeping premise. See 

id. at 530-531 (Brickley, J.); 537-538 (Cavanagh, J.); 557-

558 (Levin, J.). The "majority" of the Finley Court was 

composed of only three justices who in obiter dictum saw 

an application of Luce beyond MRE 609. Hence, the 

rationale in the lead opinion in Finley giving an expanded 

view of Luce is erroneously based. 

Luce and Finley are Inapplicable 

Defendant seeks review of an incorrect ruling 

involving his right to remain silent after receiving 

Miranda warnings. Miranda v Arizona, 384 US 436; 86 S Ct 

1602; 16 L Ed 2d 694 (1966). The majority “extends” the 

holding of Luce to this case. This extension ignores 

language in both Luce and Finley specifically limiting 

their holdings to cases involving a subtle evidentiary 

balancing test of nonconstitutional dimensions concerning 

impeachment with prior convictions. Luce, 469 US 43; 

Finley, 431 Mich 514 (Riley, C.J.), 553-554 (Levin, J.). 

Indeed, Chief Justice Burger's opinion for the Court 

in Luce carefully distinguished Luce from Brooks v 

Tennessee and New Jersey v Portash. Brooks v Tennessee, 

406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972); New Jersey 

v Portash, 440 US 450; 99 S Ct 1292; 59 L Ed 2d 501 (1979). 

4
 
Brooks and Portash involved “Fifth Amendment challenges to 

state court rulings that operated to dissuade defendants 

from testifying.” Justice Burger wrote that they did not 

involve “a federal court's preliminary ruling on a question 

that did not reach constitutional dimensions, such as a 

decision under [FRE 609(a)]." Luce, 469 US 42-43. 

The Luce Court was primarily concerned about the 

practical problem of trial courts being forced to make FRE 

609 evidentiary rulings in a factual vacuum: 

A reviewing court is handicapped in any

effort to rule on subtle evidentiary questions

outside a factual context. This is particularly

true under Rule 609(a)(1), which directs the 

court to weigh the probative value of a prior

conviction against the prejudicial effect to the

defendant. To perform this balancing, the court

must know the precise nature of the defendant's

testimony, which is unknowable when, as here, the

defendant does not testify. [Luce, 469 US 41.] 

I agree with the dissent in Finley that the above 

rationale from Luce is unpersuasive even in the limited 

context of a ruling in limine on an FRE 609 motion. Finley, 

431 Mich 537 (Cavanagh, J.). In any event, the review of 

prior conviction evidence under FRE 609(a) involves both a 

nonconstitutional question and a subtle balancing test. 

The test is heavily dependent on the precise scope of the 

defendant’s testimony. However, the claimed error in this 

case involves solely a legal question and is one of 

constitutional dimensions. 

5
 
 

The majority presents case law from federal circuit 

courts of appeals that have expanded Luce to claims other 

than those involving FRE 609 determinations. Included are 

opinions from two jurisdictions that have extended the Luce 

rule to questions involving constitutional claims of error. 

However, the majority places too much reliance on the warm 

reception of these courts to the unwarranted expansion of 

Luce by federal circuit courts. "It is only understandable 

that our extremely overworked judges will display a natural 

fondness for any strict preservation of error rule, which 

necessarily lightens the often crushing case load of both 

trial and appeals court judges." Duane, Appellate review of 

in limine rulings, 182 FRD 666, 682 (1999). 

Various federal and state court opinions have 

recognized the inapplicability of Luce to Fifth Amendment 

and Sixth Amendment violations, as well as other similar 

questions of constitutional error.3

 I find these opinions 

persuasive. 

3

See, e.g., United States ex rel Adkins v Greer, 791

F2d 590, 593-594 (CA 7, 1986)(a confession elicited in

violation of the defendant’s Fifth Amendment rights can be

reviewed despite the defendant’s election not to testify);

United States v Chischilly, 30 F3d 1144, 1150-1151 (CA 9,

1994) (a defendant was permitted to challenge the 

admissibility of a confession, despite the fact that it was

not introduced, because the trial court's ruling that the

confession could be used prevented the defendant from 

Footnotes continued on following page. 

6
 
 

There are a number of important reasons for the 

differentiation they recognize. First, as aptly noted by 

Justice Cavanagh in Finley, Luce's requirement that a 

defendant testify to preserve the impeachment issue was 

“inconsistent with the spirit, if not the precise holding,” 

of two of the United States Supreme Court's own decisions, 

Brooks and Potash. Both specifically dealt with questions 

of Fifth Amendment challenges to state court rulings. 

Finley, 431 Mich 535-536 (Cavanagh, J.). Justice Brennan 

in his Luce concurrence specifically recognized the factual 

differences of such a claim. He noted, also, that a 

different “calculus of interests” sets the types of claims 

raising an insanity defense); Biller v Lopes, 834 F2d 41,

43-45 (CA 2, 1987) (a habeas corpus petitioner was 

permitted to raise a claim that the denial of a motion in

limine unfairly kept him from testifying, when the motion

was based on the unconstitutionality of a prior

conviction); United States v Jenkins, 785 F2d 1387 (CA 9,

1986) (the use of grand jury testimony for impeachment was

moot because the government did not introduce it at trial);

Pillotti v Superintendent, 759 F Supp 1031 (SD NY, 1991) (a

challenge to impeachment evidence obtained with a 

fraudulently obtained guilty plea in a prior case). See 

also State v Greve, 67 Wash App 166; 834 P2d 656 (1992);

State v Brings Plenty, 459 NW2d 390 (SD, 1990); State v 

Brunelle 148 Vt 347; 534 A2d 198 (1987); People v 

Henderson, 745 P2d 265 (Colo App, 1987); State v Lamb, 84

NC App 569, 580-581; 353 SE2d 857 (1983); People v Brown,

42 Cal App 4th 461; 49 Cal Rptr 2d 652 (1996).

Interestingly, the court in United States v Wilson, 307 F3d

596 (CA 7, 2002), failed to address the precedent of its

own circuit in reaching its decision. 

7
 
of error apart from one another. Luce, 469 US 44 (Brennan, 

J., concurring). 

I agree with Justice Brennan that a different 

“calculus of interests” is present when the alleged claim 

of error is a constitutional one. I find that, even more 

than in a review of an FRE 609 ruling, the calculus of 

interests involved where the alleged error is 

constitutional in nature requires appellate court review. 

This is true even if the defendant does not testify at 

trial and the evidence is not provided to the jury. As 

Justice Cavanagh so eloquently stated in his dissent in 

Finley: 

Let us start with the language of the Fifth

Amendment itself, which states in part: 

No person . . . shall be compelled in any

criminal case to be a witness against himself

. . . . [US Const, Am V.] 

Implicit in this constitutional guarantee is

that no penalty, no sanction, no disadvantage to

the defendant shall flow from his decision not to 

testify at trial. 

Griffin v California, 380 US 609; 85 S Ct

1229; 14 L Ed 2d 106 (1965), reh den 381 US 957

(1965), held unconstitutional a statute 

permitting the prosecution to comment on the 

failure of the defendant to testify at his 

criminal trial. Carter v Kentucky, 450 US 288;

101 S Ct 1112; 67 L Ed 2d 241 (1981), held that

the Fifth Amendment required the court, upon the

request of a nontestifying defendant, to instruct

the jury not to draw an adverse inference from

the failure of the defendant to testify. The

central theme of both cases was "that a defendant 

must pay no court-imposed price for the exercise 

8
 
 

of his constitutional privilege not to testify." 

450 US 301. (Emphasis added.) 

Similarly, the Court in Lefkowitz v 

Cunningham, 431 US 801, 805; 97 S Ct 2132; 53 L

Ed 2d 1 (1977), observed: 

“[Our] cases have established that a State

may not impose substantial penalties because a

witness elects to exercise his Fifth Amendment 

right not to give incriminating testimony against

himself.” 

The Luce rule exacts a heavy price from the

defendant for electing not to testify at his

trial. He is denied the right on appeal to raise

what may be a substantial issue. [Finley, 431

Mich 533-534 (Cavanagh, J.).] 

Here, the majority's decision exacts an even heavier 

price on defendant’s decision not to testify at trial. An 

accused in the position of the defendant in Finley must 

testify or give up the right to raise a substantial issue. 

In this case, however, the claim of error surrendered is a 

constitutional one, not simply an evidentiary one. 

Luce Did Not Invoke Constitutional Questions 

In an attempt to justify why retroactive application 

is unwarranted in this case, the majority chooses to find 

constitutional implications present in Luce and Finley. 

However, both the majority and the concurrence in Luce and 

the lead opinion in Finley took pains to distinguish Rule 

609 questions from those involving constitutional claims of 

error. In direct response to Justice Cavanagh's dissent in 

Finley, the lead opinion stated: 

9
 
[D]espite the suggestions in Justice 

Cavanagh's opinion, it cannot be seriously

claimed that the Fifth Amendment bars adoption of

Luce. Whatever one's views of the philosophy of

particular justices, in Luce, all eight justices

agreed that the issue did not involve a Fifth

Amendment challenge. The issue presented is what

procedural steps are necessary to preserve an

issue for appeal, a matter that no more levies a

"court-imposed price" for the exercise of a 

constitutional privilege than procedural rules 

requiring the timely assertion of other 

constitutional rights. [Finley, 431 Mich 520 

(Riley, J.).] 

The majority’s recognition that "[a] defendant's right 

to testify in his own defense stems from the Fifth, Sixth, 

and Fourteenth amendments of the United States 

Constitution", ante at 12, arises from its reading of Rock 

v Arkansas, 483 US 44, 46-47; 107 S Ct 2704; 97 L Ed 37 

(1987). However, Rock was not published until after Luce 

had been decided and was not mentioned in Finley, which was 

released soon after Rock. As noted by Professor Duane, 

there is no indication that the defendant in Luce raised, 

or that the Luce Court saw itself as deciding, any 

constitutional claim whatsoever. At the time Luce was 

decided: 

Chief Justice Burger and a majority of the

Court still regarded it as an open question 

whether a criminal accused had a constitutional 

right to testify in his own trial. Two years

after Luce, Chief Justice Burger wrote for the 

majority in Nix v Whiteside that "this Court has 

never explicitly held that a criminal defendant

has a due process right to testify in his own 

10
 
behalf . . . ." [Nix v Whiteside, 475 US 157,

164; 106 S Ct 988; 89 L Ed 2d 123 (1986)]. This

comment provoked a response by a minority of four

justices who were "puzzled by the Court's 

implicit suggestion that whether a defendant has

a constitutional right to testify in his own

defense remains an open question." [Id. at 186 n 

5 (Blackmun, J., concurring).] 

Since the time Burger wrote for the Court in

Luce and Nix, however, the Supreme Court has

formally settled that an accused has a 

constitutional right to testify at his trial 

[e.g., Rock, supra at 49-51]. That being the

case, there is now a plausible basis for a 

criminal appellant to claim—unlike the appellant

in Luce—that an erroneous ruling to allow 

impeachment amounted to an impermissible burden

on the exercise of his constitutional rights.

[Duane, supra at 686.] 

Professor Duane used this observation to show why Luce 

was out of step with previous Supreme Court decisions. He 

theorized that this was the reason that the Supreme Court 

apparently has been highly reluctant to give Luce any 

precedential value in the years since it was issued. Also, 

he believes that the Supreme Court would not rule as it did 

in Luce were it again presented with the same issue. 

The Majority’s Reliance on Ohler is Misplaced 

The majority reads too much into the decision in Ohler 

v United States, 529 US 753; 120 SCt 1851; 146 L Ed 2d 826 

(2000). There, defendant was confronted with the potential 

introduction of evidence of a prior conviction. The 

defendant sought in limine to preclude the evidence under 

11
 
FRE 609, and the trial court denied the motion. The 

defendant then elected to testify and explain the earlier 

conviction before he could be impeached with it. After 

being convicted, he asserted on appeal that the trial 

court’s ruling infringed his right to testify. The United 

States Supreme Court, in a five-to-four decision, affirmed 

the conviction. 

The majority, in an opinion by Chief Justice 

Rehnquist, found that the defendant “runs into the position 

taken by the Court in a similar, but not identical, 

situation in Luce” that any possible harm from the decision 

whether to testify is wholly speculative. Ohler, 529 US 

759. This is the only mention of Luce in the majority 

opinion. The Court’s holding was based primarily on a 

waiver analysis: “We conclude that a defendant who 

preemptively introduces evidence of a prior conviction on 

direct examination may not on appeal claim that the 

admission of such evidence was error.” Id. at 760. 

The dissent, authored by Justice Souter, disagreed 

with the waiver analysis. It discussed Luce in three 

paragraphs. The majority here has quoted the second 

paragraph, yet conveniently omitted the first and third. 

The relevant text, id. at 760-761, is as follows: 

12
 
The only case of this Court that the 

majority claims as even tangential support for

its waiver rule is Luce v United States, 469 US

38; 105 S Ct 460; 83 L Ed 2d 443 (1984). Ante at 

[759]. We held there that a criminal defendant 

who remained off the stand could not appeal an in 

limine ruling to admit prior convictions as 

impeachment evidence under Federal Rule of 

Evidence 609(a). Since the defendant had not 

testified, he had never suffered the impeachment,

and the question was whether he should be allowed

to appeal the in limine ruling anyway, on the

rationale that the threatened impeachment had 

discouraged the exercise of his right to defend

by his own testimony. The answer turned on the

practical realities of appellate review. 

An appellate court can neither determine why

a defendant refused to testify, nor compare the

actual trial with the one that would have 

occurred if the accused had taken the stand. With 

unavoidable uncertainty about whether and how 

much the in limine ruling harmed the defendant,

and whether it affected the trial at all, a rule

allowing a silent defendant to appeal would 

require courts either to attempt wholly

speculative harmless-error analysis, or to grant

new trials to some defendants who were not harmed 

by the ruling, and to some who never even 

intended to testify. In requiring testimony and

actual impeachment before a defendant could 

appeal an in limine ruling to admit prior

convictions, therefore, Luce did not derive a 

waiver rule from some general notion of fairness;

it merely acknowledged the incapacity of an 

appellate court to assess the significance of the

ruling for a defendant who remains silent. 

This case is different, there being a 

factual record on which Ohler's claim can be 

reviewed. She testified, and there is no question

that the in limine ruling controlled her 

counsel's decision to enquire about the earlier

conviction; defense lawyers do not set out to

impeach their own witnesses, much less their 

clients. Since analysis for harmless error is

made no more difficult by the fact that the

convictions came out on direct examination, not 

13
 
__________________________________________________________________________ 

_________________________________________________ 

cross-examination, the case raises none of the

practical difficulties on which Luce turned, and

Luce does not dictate today's result.1 

1

 The Luce Court anticipated as much: “It is 

clear, of course, that had petitioner testified

and been impeached by evidence of a prior

conviction, the District Court's decision to 

admit the impeachment evidence would have been

reviewable on appeal along with any other claims

of error. The Court of Appeals would then have

had a complete record detailing the nature of

petitioner's testimony, the scope of the crossexamination, and the possible impact of 

impeachment on the jury's verdict." 469 US at 

41. There are, of course, practical issues that

may arise in these cases; for example, the trial

court may feel unable to render a final and

definitive in limine ruling. The majority does

not focus on these potential difficulties, and

neither do I, though some lower courts have 

addressed them. See, e.g., Wilson v Williams,

182 F.3d 562 (CA 7, 1999) (en banc). For the 

purposes of this case, we need consider only the

circumstance in which a district court makes a 

ruling that is plainly final. 

It is manifest that the majority's reliance on Ohler 

in the instant case is misplaced. The United States 

Supreme Court only begrudgingly cited Luce in Ohler. 

Additionally, Ohler is the only United States Supreme Court 

decision to even mention Luce in passing. Finally, Ohler 

and Luce, unlike the instant case, involved alleged error 

stemming from the introduction of prior conviction evidence 

under FRE 609. For all practical matters, Ohler is yet 

another decision indicating that Luce should be confined to 

14
 
prior conviction evidence and should not be extended to 

claims of constitutional error. 

The Holding in Luce Should Not Be Extended 

The majority has found no case law holding that Luce 

involved a constitutional claim of error. I have 

discovered none. Most certainly, the lead opinion in 

Finley did not do so. 

In my view, the majority's acknowledgment today of the 

implication of an FRE 609 ruling on a defendant's Fifth 

Amendment right to testify proves the correctness of 

Justice Cavanagh's position in Finley. Such an 

acknowledgment also strengthens, rather than detracts from, 

the arguments against extending Finley to claims outside 

its narrow holding. 

Even if Luce can be read to distinguish evidentiary 

"questions not reaching constitutional dimensions" from 

claims of error that involve direct constitutional error, 

the Luce holding presents little support for expansion 

beyond its borders. The trial court’s decision in this 

case fully implicates both a defendant’s Fifth Amendment 

right to testify and his Fifth Amendment right to remain 

silent in the face of post-Miranda accusations. These 

rights come into play even when the trial court's ruling 

restricts the admission of evidence of a prior conviction 

15
 
to rebuttal, in contrast to the trial court’s more 

expansive ruling here. 

The magnitude of the choice that the ruling places on 

the defendant far outweighs that to be made under an FRE or 

MRE 609 ruling. In a rule 609 question, the defendant must 

choose between testifying and not testifying. If he does 

not testify, he relinquishes his opportunity to present his 

account of the incident. If he does testify, the 

prosecution may use improperly admitted prior convictions 

to impeach his credibility. 

In this case, by contrast, if the defendant chooses 

not to testify, he will forgo the opportunity to present 

his account of the incident and lose all chance to appeal. 

If he testifies, he risks being impeached with improperly 

admitted substantive statements that the jury is certain to 

use as evidence of his guilt of the instant offense. 

The risk that this damaging impeachment evidence will 

destroy defendant’s credibility in the jury’s eyes produces 

a chilling effect on defendant’s exercise of the right to 

testify. That risk acts as an impermissible "penalty 

imposed by courts for exercising a constitutional 

privilege." Griffin, 380 US 614. In essence, the 

majority’s holding here requires the defendant to choose 

which constitutional right to give up, his Fifth Amendment 

16
 
 

right to post-Miranda silence or his Fifth Amendment right 

not to testify.4 

Even if one believes that Luce gave due deference to 

the chilling effect on a defendant's right to testify, the 

instant case brings into sharp focus the observation by 

Justice Brennan: the "calculus of interests” may be much 

different in a matter involving a simple evidentiary ruling 

than in one involving a claimed error of constitutional 

magnitude. 

No Weighing of Evidence Is Appropriate 

As noted by Justice Brennan,5

 concerns about ruling in 

a factual vacuum are not present to the same extent when 

the court’s ruling turns on legal, rather than factual, 

considerations. See, e.g., United States ex rel Adkins v 

Greer, 791 F2d 590, 594 (CA 7, 1986). The majority implies 

4 The majority calls this statement "misleading." When 

attempting to substantiate its dismissive characterization

of the statement, it ignores the fact that defendant in

this case was confronted with an erroneous trial court 

ruling. It ignores, in addition, that no facts suggest

that, had he taken the stand, defendant would have claimed

to have made an exculpatory statement to the police.

Hence, the impeachment he faced would have had to be

improper and, contrary to the majority's reasoning,

defendant could not properly have been impeached with his

post-Miranda silence. 

5

Luce, 469 US 43-44 (Brennan, J.). 

17
 
 

that the question presented here involves a factual, rather 

than legal, question. It is incorrect. 

The prosecution's threatened use as a confession of 

defendant's post-Miranda affirmative assertion of his right 

to remain silent would violate the Constitution in all but 

extremely limited circumstances. Doyle v Ohio, 426 US 610, 

619 n 11; 96 S Ct 2240; 49 L Ed 2d 91 (1976). It is 

important to realize that the exception in Doyle is not as 

broad as the majority's quotation implies. Postarrest 

silence can be used to contradict a defendant who testifies 

that he made an exculpatory statement to the police. It 

cannot be used to impeach the substance of a defendant's 

testimony. Doyle, 426 US 619 n 11. See also People v 

Dennis, 464 Mich 567, 573 n 5; 628 NW2d 502 (2001). 

As recognized in People v Bobo,6 the only use of postMiranda silence is to contradict a specific assertion that 

a defendant provided a statement to the police. Id. at 

359. Any remaining validity for the rationale of Luce and 

later evidentiary decisions examining evidentiary rulings, 

such as those involving MRE 403 and MRE 404(b), does not 

apply here. 

6

People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). 

18
 
The Luce Court opined that a reviewing court's 

weighing of the probative value and prejudicial effect of a 

prior conviction under Rule 609 depends on the nature of 

the defendant’s testimony. No such weighing was necessary 

in this case. At the time of the ruling in limine, the 

trial court was not required to determine the extent of 

defendant’s actual testimony. It was required merely to 

conclude that the invocation of silence could not be used 

as substantive evidence in the prosecution’s case-in-chief 

or to rebut the substance of defendant’s testimony. 

Moreover, the trial court should have held that 

defendant’s statement was admissible only if defendant took 

the stand and asserted that he made an exculpatory 

statement to the police when arrested. Appellate review 

does not depend on knowledge of the exact extent of 

defendant's later trial testimony or a weighing of factors 

such as those present in a Rule 609 analysis. 

Defendant’s Claim of Error is Not Speculative 

Nor do I agree with the majority's determination that 

defendant's claim of error is "speculative" because 

defendant did not testify and his earlier statement was not 

given to the jury. That determination ignores the plain 

error present in this case. It disregards the chilling 

effect on defendant's decision not to testify and the 

19
 
 

 

important distinction Michigan recognizes between reviewing 

constitutional error and nonconstitutional evidentiary 

error. 

The majority's assertion that "it is impossible to 

determine whether the trial court's ruling was erroneous,"7 

overlooks the content of the ruling that it is reviewing. 

The majority places much emphasis on the fact that the 

admissibility of a defendant's post-Miranda silence depends 

on the context in which the prosecutor sought to admit it. 

Ante at 13. The context here, judging from the substance 

of the prosecutor's arguments and the trial court's actual 

ruling, confirms that the trial court admitted the 

statement for any and all purposes. The ruling was based 

on an entirely flawed view of the scope of the Fifth 

Amendment. It was premised on the erroneous conclusion that 

the challenged statement was not protected by the Fifth 

Amendment: 

[Defendant] agrees that he's going to give a

statement and he starts. The law says that you

can't stop in the middle and say, well, now I

want to assert my Fifth Amendment rights. You 

don’t have any further Fifth Amendment rights

once you start to give a statement. You can’t 

say what you want said and not say anything else. 

7

Ante at 18. 

20
 
 

As previously recognized by our Court, in a situation 

where "a defendant answered several questions and then 

invoked his right to remain silent, Doyle, supra at 618-

619, would prevent the prosecutor from commenting on this 

silence." People v McReavy, 436 Mich 197, 219 n 23; 462 

NW2d 1 (1990). See also 218-219. Such silence includes 

"not only 'muteness; [but] includes the statement of [the 

defendant's] desire to remain silent, as well as of a 

desire to remain silent until an attorney has been 

consulted,'" Id., 218 n 21, citing Wainwright v Greenfield, 

474 US 284, 295, n 13; 106 S Ct 634; 88 L Ed 2d 623 (1986). 

Despite this basic principle, the trial court here did 

not limit in any way the use of defendant's statement. It 

did not recognize the specific limitations in Doyle v Ohio,8 

or this Court's majority opinion in People v Dennis, 464 

Mich 567, 573 n 5; 628 NW2d 508 (2001). In Dennis, the 

erroneously admitted evidence involved inadvertently 

elicited trial testimony about the defendant's refusal to 

submit to a police interview. Id. at 578. This Court 

recognized the error in the introduction of the evidence, 

but found the evidence harmless. It relied in large part 

on the fact that, because the trial court specifically 

8

Supra at 619 n 11. 

21
 
found error in the admission, it gave a "forceful curative 

instruction" to the jury that the evidence "'cannot be used 

by you in any way and is not an indication of anything.'" 

Id. 

The trial court’s ruling here placed no restriction on 

the prosecution's use of the statement, either during 

direct testimony or in rebuttal. The court found simply 

that the Fifth Amendment did not apply at all. Not only 

was the trial court's ruling erroneous, the error was 

plain. The problems of “ruling in a vacuum” are simply not 

applicable here. 

The Error is Not Harmless 

The majority's analysis of the error also fails to 

note that the trial court’s ruling was clearly erroneous. 

Moreover, it fails to recognize the important distinction 

between the error in Luce and the error in the instant 

case. The ruling in Luce, upon which the defendant's claim 

of error was predicated, involved a nonconstitutional 

evidentiary issue. 

In Michigan today, it is the defendant who bears the 

burden of demonstrating that a nonconstitutional error 

harmed him by causing him not to testify. People v Lukity, 

460 Mich 484, 495-496; 596 NW2d 607 (1999). If, instead, 

the error were a preserved constitutional one, the burden 

22
 
 

would be on the prosecution to "prove beyond a reasonable 

doubt that the error complained of did not contribute to 

the verdict obtained." People v Anderson (After Remand), 

446 Mich 392, 406 n 36; 521 NW2d 538 (1994), quoting 

Chapman v California, 386 US 18, 23; 87 S Ct 824; 17 L Ed 

2d 705 (1967). 

Thus, concerns about the "speculative" effect of an 

erroneous FRE or MRE 609 ruling on a defendant's decision 

not to testify are not present in the instant case. The 

effect is presumed to be prejudicial. Indeed, given the 

clear error in the trial court's broad ruling of 

admissibility, I question the truth of the majority's 

assertion that it cannot determine whether the ruling was 

erroneous. In addition, I would find that the 

prosecution's choice not to elicit defendant's statement on 

direct examination did not remove from the flawed ruling 

its chilling effect. 

The majority's assertion that the evidence "might not 

have been admitted at all" even if defendant had testified9 

ignores the realities of the trial court's misunderstanding 

about the limited admissibility of the statement. 

Statements made at the hearing in limine demonstrate that 

9

Ante at 17. 

23
 
the prosecution intended to introduce defendant’s statement 

if he testified about having provided an exculpatory 

statement to the police. However, even if he had not, the 

prosecution would have introduced the statement to rebut 

other parts of his testimony. The trial court's ruling 

made clear that it would have admitted the statement for an 

improper purpose, because the court was under the mistaken 

impression that the Fifth Amendment did not apply. 

At the time of the decision to testify, defendant was 

faced with an erroneous ruling involving substantive 

evidence of guilt. Unlike the majority, I would not expect 

defendant to forecast that the court would have a 

revelation about the impropriety of its ruling, especially 

because it immediately predated the trial. Nothing in the 

record suggests that such a revelation would occur and, 

given the rationale used by the trial court in making the 

ruling, I find such a result highly unlikely. Whatever 

validity that argument may have in different circumstances, 

it is inapplicable here. 

The Challenge In Limine was Appropriate 

Nor do I find persuasive the majority's assertion that 

a reversal based on the admission of evidence contested in 

limine, but never introduced at trial, will invite abuse. 

This argument fails to recognize that appellate courts will 

24
 
review claims of error, even when they are not preserved at 

all. People v Carines, 460 Mich 750, 763; 597 NW2d 130 

(1999). Moreover it has little merit in the setting where 

claims of constitutional error are raised, and none in the 

instant case. 

A defendant does not abuse the system by seeking 

before trial to suppress evidence obtained in violation of 

his constitutional rights and directly bearing on the 

analysis of guilt. To the contrary, as this Court has 

noted, a contemporaneous objection provides the trial court 

"'an opportunity to correct the error, which could thereby 

obviate the necessity of further legal proceedings and 

would be by far the best time to address a defendant's 

constitutional and nonconstitutional rights.'" Carines, 

supra at 764-765 (citations omitted). As recognized by a 

majority of the justices in Finley, preliminary evidentiary 

rulings are valid, important, and logical ways to review 

questions of evidentiary error. Finley, supra at 531 

(Brickley, J.), at 537 (Cavanagh, J.), and at 557-558 

(Levin, J.). 

Conclusion 

The error in this case was preserved by timely 

objection. Also, the trial court's specific ruling on the 

motion in limine was erroneous. Therefore, defendant's 

25
 
conviction must be reversed unless the prosecution can 

prove beyond a reasonable doubt that the error did not 

contribute to the verdict. Anderson (After Remand), supra. 

The prosecution has failed to do this. 

The conviction in this case was dependent almost 

entirely on the testimony of the twelve-year-old 

complainant, about whose honesty the jury obviously had 

doubts. Had defendant testified, the case would have been 

a credibility contest. But, because of the trial court’s 

erroneous ruling, defendant did not testify. Hence, the 

verdict was influenced by the trial court's error. The 

prosecution has not shown that the evidence at trial so 

overwhelmingly proved defendant’s guilt that his testimony 

would not have made a difference. 

Therefore, the trial court erred and the prosecution 

cannot show that the error was harmless beyond a reasonable 

doubt. I would reverse defendant's conviction and remand 

this case for a new trial. Because of this conclusion, I 

need not review defendant’s additional claim that the trial 

court improperly exceeded the sentencing guidelines for his 

conviction. However, I note that the sentence seems to 

have been influenced by the trial court’s view that 

defendant committed first-degree criminal sexual conduct, 

notwithstanding his acquittal of that charge. The issue is 

26
 
hardly frivolous, yet the majority makes no mention of it, 

merely alluding to the lower court’s decisions to justify 

not reaching the matter. 

Marilyn Kelly

Michael F. Cavanagh 

27