Prosecutorial error; Questioning defendant about pre-arrest silence; Miranda v Arizona; People v Cetlinski

The court held that the prosecutor’s impeachment questions concerned defendant’s pre-arraignment, pre-Miranda silence and therefore did not violate the Fifth Amendment. At trial for assault by strangulation and domestic violence, defendant testified he acted in self-defense. On cross-examination, the prosecutor asked why he had not told police his version beforehand. Defense counsel objected. On appeal, the court noted that while post-Miranda silence cannot be used to impeach, pre-arrest silence may be used. “A defendant’s silence after being informed of his Miranda rights cannot be used to impeach, but the use of prearrest silence to impeach does not violate the Fifth Amendment, nor the Michigan Constitution.” The transcript showed the prosecutor clarified he was asking about events before the arraignment at which Miranda warnings were given. The questions focused on why defendant never shared his account prior to arrest and arraignment. Because the line of questioning addressed pre-Miranda silence, it fell within Cetlinski’s rule permitting impeachment with pre-arrest silence. “Simply put, defendant’s argument is misplaced because the prosecutor did not question [him] about his post-Miranda silence and, therefore, there was no error because a defendant may be impeached by his prearrest silence. Because the prosecutor did not question defendant about his post-Miranda silence, there was no error, harmless or otherwise.” Affirmed.