MSC: Is evidence of pre-arrest silence admissible if defendant fails to immediately come forward with a claim of self-defense?

In People v. Wooten, No. 149917, the Michigan Supreme Court granted mini-oral argument to consider defendant’s application for leave to appeal. At the oral argument, parties were directed to address whether the defendant’s Fifth Amendment right against self-incrimination was violated where, in its case-in-chief, the prosecutor elicited testimony at trial from a law enforcement officer regarding defendant’s pre-arrest silence and failure to come forward with a claim of self-defense. The trial court suggested that the prosecutor may have been deliberately creating grounds for a mistrial in order to get a “second strike” at the case. The Court of Appeals ruled that the defendant’s pre-arrest silence was admissible as substantive evidence because there was no evidence that at the time in question defendant was invoking his Fifth Amendment right against self-incrimination.

The defendant was convicted of second-degree murder, MCL 750.83, and related offenses stemming from a shooting incident. At trial, the officer in charge of the case testified that she was not aware before trial that the victim was armed with and pulled out a firearm during the incident. On redirect, the prosecutor elicited testimony that there was no evidence of a second gun at the scene that would have directed the investigation towards the victim. The prosecutor then asked “In this case, would you have enjoyed talking to the [d]efendant?” The defense objected, and at a sidebar conference, accused the prosecutor of deliberately eliciting testimony in violation of the defendant’s Fifth Amendment right against self-incrimination in order to make the defense move for a mistrial and get a “second strike” at the case.

The Court of Appeals affirmed the conviction, reasoning that since pre-arrest silence may be used as impeachment evidence under some circumstances, the trial court did not clearly err in its finding that the prosecution did not deliberately attempt to make the defense move for a mistrial. Further, the Court of Appeals held that the defendant’s pre-arrest silence was admissible as substantive evidence of the defendant’s guilt because there was no evidence that he was invoking his right against self-incrimination and it was relevant to the question of his guilt.

The Michigan Supreme Court also directed the parties to brief whether evidence of pre-arrest silence is admissible as substantive evidence or merely as impeachment of the defense’s anticipated defense theory and whether, if the evidence is inadmissible, the trial court erred in finding that the prosecutor did not intentionally goad the defense into moving for a mistrial and whether the trial court erred in granting a mistrial and allowing the defendant to be retried.