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A Better Partnership
June 27, 2013

MSC holds that a defendant's Fifth Amendment privilege is not absolute if a defendant testifies in a second trial

In People v. Clary, the Michigan Supreme Court held that a defendant's Fifth Amendment privilege does not prohibit the prosecutor from using a defendant's previous silence at trial to impeach a defendant who chooses to testify at a second trial. In this case, the defendant's silence in his first trial as to whether the defendant shot someone was used against him for impeachment purposes in his second trial. The prosecutor also referred to the defendant's post-arrest silence during the course of the second trial. Subsequently, the defendant was convicted of assault with intent to commit murder and possession of a firearm. The Court of Appeals reversed the defendant's convictions, concluding that the defendant was improperly impeached when the prosecutor made repeated references to defendant's failure to testify at the previous trial. The MSC disagreed with the COA, holding in accordance with federal case law, that the Fifth Amendment does not protect a defendant who testifies in his own defense at a second trial and is then impeached with his prior silence. However, the court affirmed the COA's reversal of defendant's convictions on the basis that the prosecutor's repeated references to the defendant's post-arrest silence was improper and a deprivation of due process because the defendant was informed of and exercising his Miranda rights.

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