Fifth Amendment, Use of Defendant’s Silence at Trial

Criminal Law Update

People v Clary, 494 Mich 260; 833 NW2d 308 (2013)(june’13). Citing decisions of the United States Supreme Court the Michigan Supreme Court, reversing the court of appeals on this point, determined that it was not error to impeach Defendant, testifying at his second trial, with his silence at his first trial. However, the supreme court left intact the remedy of reversal because, again disagreeing with the court of appeals, the majority found that the prosecutor erred in using Defendant’s post-Miranda silence to police against him at his second trial.