Prosecution references to defendant’s prearrest silence; MRE 401 & 403; People v. Cetlinski; People v. Musser

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 69098 in the 12/6/18 edition), the court remanded the case to that court to consider whether the prosecutor’s references to “defendant’s prearrest silence were relevant and admissible under MRE 401 and MRE 403,” and if they were not, whether it was “more probable than not that the error was outcome determinative[.]” The court instructed the Court of Appeals to forward its decision on remand to the Supreme Court Clerk within 56 days, and it retained jurisdiction.