People of Michigan v. George Robert Tanner , 496 Mich. 199 ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
PEOPLE v TANNER
Docket No. 146211. Argued November 6, 2013 (Calendar No. 7). Decided
June 23, 2014.
George R. Tanner was charged with open murder, MCL 750.316, and mutilation of a
dead body, MCL 750.160, in the Livingston Circuit Court. After his arrest, he was taken to jail
and read his rights under Miranda v Arizona, 384 US 436 (1966). Defendant invoked his right to
counsel and questioning ceased. The next day, while speaking with a jail psychologist,
defendant stated that he wanted to “get something off of his chest.” The psychologist informed
jail staff of defendant’s request. The jail administrator then spoke with defendant. Defendant
told the administrator that he wanted to speak with someone about his case and asked if the
administrator could obtain an attorney for him. The administrator stated that he could not
provide an attorney for defendant, but could contact the police officers who were handling the
case. Defendant agreed. The administrator then contacted both the police and the prosecutor.
The prosecutor apparently informed the court of defendant’s request for an attorney, and the
court sent an attorney to the jail. After the attorney and the police officers arrived at the jail, the
jail administrator took the police officers to speak with defendant and asked the attorney to wait
in the jail lobby while the officers determined defendant’s intentions. Defendant was again read
his Miranda rights, which he waived without again requesting an attorney and without being
made aware of the attorney’s presence at the jail. Defendant then made incriminating statements
concerning his involvement in the murder. Defense counsel moved to suppress the statements,
and the court, David J. Reader, J., granted the motion. The prosecution sought leave to appeal.
The Court of Appeals denied the application. The prosecution then sought leave to appeal in the
Supreme Court, which granted the application. 493 Mich 958 (2013).
In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices KELLY,
ZAHRA, and VIVIANO, the Supreme Court held:
Once it is determined that a suspect’s decision not to rely on his or her rights was
uncoerced, that at all times the suspect knew he or she could stand mute and request a lawyer,
and that the suspect was aware of the state’s intent to use the suspect’s statements to secure a
conviction, the analysis is complete and a waiver of those rights is valid as a matter of law,
overruling People v Bender, 452 Mich 594 (1996).
1. Under the Fifth Amendment of the United States Constitution and Article 1, § 17 of
Michigan’s 1963 Constitution, no person shall be compelled in any criminal case to be a witness
against him or herself. In Miranda, the United States Supreme Court held that the accused must
be given a series of warnings before being subjected to custodial interrogation in order to protect
the constitutional right against self-incrimination. A suspect’s waiver of the Miranda rights must
be made voluntarily, intelligently, and knowingly.
2. In Moran v Burbine, 475 US 412 (1986), the United States Supreme Court held that
the failure of the police to inform a suspect of the efforts of an attorney to reach the suspect does
not deprive the suspect of his or her right to counsel or otherwise invalidate a Miranda waiver.
Michigan’s Supreme Court reached a different conclusion in Bender, holding that for a suspect’s
Miranda waiver to be made knowingly and intelligently, the police must promptly inform the
suspect that an attorney is available when that attorney has made contact with them. Article 1,
§ 17 of Michigan’s 1963 Constitution concerns compelled statements. At the time of the
Constitution’s ratification, the word “compelled” was commonly understood to refer to the use of
coercion, violence, force, or pressure. Accordingly, Article 1, § 17 can be reasonably understood
to protect a suspect from the use of his or her involuntary incriminating statements. The
language of Article 1, § 17 does not support the decision reached in Bender, which pertained not
to whether a statement was made voluntarily, but whether it was made knowingly. The lead and
majority opinions in Bender engaged in an unfounded creation of constitutional rights.
3. Prior Michigan caselaw did not foreshadow or otherwise provide support for Bender’s
per se exclusionary rule. Before Bender, the Michigan Supreme Court examined the effect of an
attorney’s attempts to contact a suspect on the admissibility of the suspect’s confession in People
v Cavanaugh, 246 Mich 680 (1929), and People v Wright, 441 Mich 140 (1992). Neither
decision supported Bender’s assertion that Michigan courts have historically interpreted
Michigan’s Self-Incrimination Clause to provide criminal suspects with greater protections than
those afforded by the Fifth Amendment. Rather, under Michigan law before Miranda,
voluntariness constituted the sole criterion for a confession to be admissible under either the Due
Process Clause or Michigan’s Self-Incrimination Clause.
4. Although Michigan’s Supreme Court need not interpret a provision of the Michigan
Constitution in the same manner as a similar or identical federal constitutional provision, the
United States Supreme Court’s interpretation of the Self-Incrimination Clause of the Fifth
Amendment in Moran constitutes the proper interpretation of Article I, § 17 as well. Full
comprehension of Miranda rights is sufficient to dispel whatever coercion is inherent in the
interrogation process, and the waiver of those rights cannot be affected by events that are
unknown and unperceived, such as the fact that an attorney is available to offer assistance.
5. The application of stare decisis is generally the preferred course, but the Court is not
constrained to follow precedent when governing decisions are “unworkable or []badly reasoned.”
Overruling Bender would not produce practical real-world dislocations, and less injury would
result from overruling it than from maintaining it.
6. In this case, defendant was read his Miranda rights and invoked his right to counsel,
but then reinitiated contact with the police when he indicated that he wanted to “get something
off of his chest.” He was again afforded his Miranda rights, and waived them, choosing not to
reassert his right to counsel. Defendant’s lack of awareness of the appointed attorney’s presence
at the jail did not invalidate his Miranda waiver. Therefore, the trial court erred by suppressing
defendant’s incriminating statements.
Reversed and remanded.
Justice CAVANAGH, dissenting, believed that Bender correctly determined that Article 1,
§ 17 of the Michigan Constitution provides greater protection than its federal counterpart,
requiring the police to inform the suspect when an attorney is immediately available to consult
with him or her. The majority improperly rooted its contrary conclusion in a hyper-textualist
analysis of the word “compelled.” In 1929, in Cavanaugh, the Michigan Supreme Court ruled
that holding an accused incommunicable was forbidden under the laws of this state,
foreshadowing Miranda’s understanding of the nature of the right protected by the constitutional
guarantee that a person will not be compelled to be a witness against him or herself. Although
Cavanaugh used terminology addressing whether the accused’s statement was voluntary, the
Cavanaugh analysis was consistent with Miranda’s knowing-and-intelligent-waivers analysis,
indicating that the Michigan Supreme Court did not interpret the Michigan Constitution to
prohibit the use of only those confessions obtained through the use of physical force or cruel
treatment. The majority’s decision ignores the jurisprudential history of the Court embodied in
Cavanaugh and continued in Bender and Wright. Further, under Article 1, § 20 of Michigan’s
1963 Constitution, the accused has the right to the assistance of counsel in every criminal
prosecution, including the specific right to be informed of an attorney’s attempts to contact the
accused. A defendant cannot waive the right to speak with an attorney who is immediately
available and trying to contact him when he is unaware that the attorney is available and trying to
contact him. Bender reached the correct result, provided a practical and workable rule, and
should have been upheld under the doctrine of stare decisis.
Justice MCCORMACK, dissenting, agreed with Justice CAVANAGH that the Bender rule
was grounded in Article I, § 17 of the Michigan Constitution with its jurisprudential roots set in
Cavanaugh, and declined to join the majority’s decision, which improperly reached beyond the
facts of the case to overrule Bender’s settled and sound precedent. Although the fractured
treatment of this issue in Bender was dissatisfying, none of Bender’s shortcomings were
sufficient to undermine the substantive integrity of its conclusion or render it wrongly decided.
Nor did any other consideration favor disruption of the Bender precedent. To the contrary, the
facts of this case counseled further against that course of action, as the defendant here, unlike the
defendants in Bender, made his incriminating statements only after he repeatedly expressed his
desire for counsel, but to no avail. The defendant’s frustrated attempts to invoke his right to
counsel plainly implicated Cavanaugh, which persisted regardless of whether Bender was
overruled. This case thus did not implicate the majority’s core concerns with Bender, and
overruling that precedent did little to resolve whether the defendant’s incriminating statements
should be suppressed.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED June 23, 2014
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 146211
GEORGE ROBERT TANNER,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This Court granted leave to appeal to consider whether the rule announced in
People v Bender, 452 Mich 594; 551 NW2d 71 (1996), should be maintained. Bender
requires police officers to promptly inform a suspect facing custodial interrogation that an
attorney is available when that attorney attempts to contact the suspect. If the officers fail
to do so, any statements made by the suspect, including voluntary statements given by the
suspect with full knowledge of his Miranda rights,1 are rendered inadmissible. Because
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
there is nothing in this state’s Constitution to support that rule, we respectfully conclude
that Bender was wrongly decided and that it must be overruled. We therefore reverse the
trial court’s suppression of certain incriminating statements made by defendant, which
suppression was justified solely on the grounds of Bender, and remand to the trial court
for further proceedings consistent with this opinion.
I. FACTS
Defendant George Tanner was arrested for murder and taken to jail on October 17,
2011. He was read his Miranda rights, and when police officers attempted to interview
defendant at the jail, he invoked his right to counsel. As a result, the officers informed
defendant that he would have to reinitiate contact if he subsequently changed his mind
and wished to speak to them. The next day, while a psychologist employed by the jail to
interview inmates was speaking with defendant, he said that he wanted to “get something
off his chest.” The psychologist told defendant that he should not further discuss the case
with her, that he might wish to speak to an attorney, and that she could make
arrangements for him to speak to the police officers. Defendant again stated that he
wanted to “get things off his chest,” so the psychologist told defendant that she would
inform jail staff of his request. She then contacted the jail administrator and informed
him that defendant wished to speak to police officers about his case.
The administrator spoke with defendant, told him that the psychologist had
indicated that he wanted to “get something off his chest,” and inquired whether he still
wished to speak to someone about his case. Defendant replied “yes” and asked if the
administrator could obtain an attorney for him. The administrator responded that he
2
could not, because this was not his role, but explained that he could contact the police
officers who were handling the case. Defendant replied that this would be fine, and the
administrator contacted the officers. The administrator also called the prosecutor, who
advised him that the court would appoint an attorney for defendant should he request one.
The prosecutor apparently informed the court of defendant’s request, as a result of which
an attorney was sent to the jail.
One of the police officers testified that he was contacted by the administrator and
apprised that defendant might now be amenable to speaking with the officers. The police
officer further testified that he confirmed with the administrator that defendant had not
requested that an attorney be present during the interview, and that the administrator
believed an attorney had been appointed merely as a contingency in the event defendant
sought an attorney during the interview. Subsequently, both the police officers and an
attorney appeared at the jail. Apparently unsure of his role, the attorney asked the
officers and the administrator if they knew why he was there. The administrator
responded and told him to wait in the jail lobby while he took the officers back to speak
with defendant and determine his intentions.
Defendant was again read his Miranda rights, which he waived this time without
requesting an attorney and without being made aware of the attorney’s presence. The
administrator then instructed the attorney that he could leave. Defendant shortly
thereafter made incriminating statements concerning his involvement in the murder. He
was eventually charged with open murder, MCL 750.316, and mutilation of a dead body,
MCL 750.160. Defendant was bound over to circuit court following a preliminary
examination. During this process, defense counsel filed a motion to suppress defendant’s
3
statement to the police, alleging that because he had not been informed that an attorney
had been appointed for him before his interrogation, his Miranda waiver was invalid
under this Court’s decision in Bender. A hearing was held on October 12, 2011, after
which the trial court suppressed defendant’s statement. The court determined that
defendant had requested an attorney at his October 17, 2011 interrogation, but that he had
affirmatively reinitiated contact with police officers on October 18, 2011, without
reasserting his right to counsel. However, it also determined that defendant’s statement
required suppression under Bender, because the police officers had failed to inform him
that an attorney was present at the jail and had established contact with the officers.
The prosecutor filed an application for leave to appeal in the Court of Appeals,
which was denied for lack of merit, and he then filed an application for leave to appeal in
this Court, requesting that Bender be reconsidered. We granted this application, People v
Tanner, 493 Mich 958 (2013), and heard oral argument on this case on November 6,
2013.
II. STANDARD OF REVIEW
This court “review[s] a trial court’s factual findings in a ruling on a motion to
suppress for clear error. To the extent that a trial court’s ruling on a motion to suppress
involves an interpretation of the law or the application of a constitutional standard to
uncontested facts, our review is de novo.” People v Attebury, 463 Mich 662, 668; 624
NW2d 912 (2001).
4
III. BACKGROUND
The Fifth Amendment of the United States Constitution provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.” US
Const, Am V. See also Const 1963, art 1, § 17 (containing an identical Self-
Incrimination Clause). This federal constitutional guarantee was made applicable to the
states through the Fourteenth Amendment. Malloy v Hogan, 378 US 1, 3; 84 S Ct 1489;
12 L Ed 2d 653 (1964). Prior to 1966, a suspect’s confession was constitutionally
admissible if a court determined that it was made “voluntarily.”2 Despite the apparent
textual emphasis on the voluntariness of a suspect’s confession (“no person shall be
compelled”), the United States Supreme Court held in Miranda v Arizona, 384 US 436,
444-445, 477-479; 86 S Ct 1602; 16 L Ed 2d 694 (1966), that the accused must be given
a series of warnings before being subjected to “custodial interrogation” in order to protect
his constitutional privilege against self-incrimination.3 The right to have counsel present
during custodial interrogation is, in the words of the United States Supreme Court, a
corollary of the right against compelled self-incrimination, because the presence of
counsel at this stage affords a way to “insure that statements made in the government-
2
See Brown v Mississippi, 297 US 278; 56 S Ct 461; 80 L Ed 682 (1936) (a confession is
inadmissible if extorted by brutality and violence); Chambers v Florida, 309 US 227,
238-239; 60 S Ct 472; 84 L Ed 716 (1940) (the defendant’s confession was inadmissible
when made “under circumstances calculated to break the strongest of nerves and stoutest
resistance”); Ashcraft v Tennessee, 322 US 143; 64 S Ct 921; 88 L Ed 1192 (1944) (the
modern voluntariness test began to emerge in Ashcraft, in which the Court examined the
totality of the circumstances to determine whether a confession was voluntary).
3
“Prior to any questioning, the person must be warned that he has a right to remain silent,
that any statement he does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.” Id. at 444.
5
established atmosphere are not the product of compulsion.” Id. at 466. See also id. at
470. If a suspect is not afforded Miranda warnings before custodial interrogation, “no
evidence obtained as a result of interrogation can be used against him.” Id. at 479
(citations omitted).
Once a suspect invokes his right to remain silent or requests counsel, police
questioning must cease unless the suspect affirmatively reinitiates contact.4 Id. at 473-
474. In Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378(1981) (citations omitted), the United States Supreme Court created “additional
safeguards” for when the accused invokes his right to have counsel present during
custodial interrogation:
[W]hen an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights. . . .
4
Some have referred to Miranda as establishing what is essentially the equivalent of a
“right not to be questioned”:
A final innovation of the Miranda decision was the creation of a
right on the part of arrested persons to prevent questioning. The Court
stated: “If the individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the interrogation must
cease . . . . If the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.”
The right not to be questioned was an addition to the traditional right
to refrain from answering questions on grounds of potential self-
incrimination. At the time of the Constitution, suspects had no right to cut
off custodial interrogation, and no right of this sort was recognized in the
Supreme Court’s decisions prior to Miranda . . . . [United States
Department of Justice, Office of Legal Policy, The Law of Pretrial
Interrogation, 22 U Mich J L Reform 393, 484 (1989), quoting Miranda,
384 US at 473-474.]
6
[H]aving expressed his desire to deal with the police only through counsel,
[an accused] is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with the police.
However, when a suspect has been afforded Miranda warnings and affirmatively waives
his Miranda rights, subsequent incriminating statements may be used against him.
Miranda, 384 US at 444, 479. A suspect’s waiver of his Miranda rights must be made
“voluntarily, knowingly, and intelligently.” Id. at 444. The United States Supreme Court
has articulated a two-part inquiry to determine whether a waiver is valid:
First, the relinquishment of the right must have been “voluntary,” in
the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion or deception. Second, the waiver must have been
made with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it. Only if the “totality of
the circumstances surrounding the interrogation” reveal both an uncoerced
choice and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived. [Moran v Burbine,
475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986), citing Fare v
Michael C, 442 US 707; 99 S Ct 2560; 61 L Ed 2d 197 (1979).]
Under the Fifth Amendment construct set forth by the United States Supreme
Court, the defendant in the instant case was afforded his Miranda rights by the police and
invoked his right to counsel on October 17, 2011. Defendant then reinitiated contact with
the police the next day when he indicated that he wanted to “get something off his chest”
and speak with the officers. He was then afforded his Miranda rights a second time, and
on this occasion waived those rights and chose not to reassert his right to counsel.
During the following custodial interrogation by the police officers, defendant made an
incriminating statement concerning his involvement in a murder. The only pertinent
question then is whether defendant’s lack of awareness of the appointed attorney’s
presence at the jail at the time of his Miranda waiver following his reinitiation of contact
7
with the police calls into question the validity of that waiver, including the waiver of his
right to counsel-- rendering it something other than “voluntary, knowing, and
intelligent”-- and thus requires suppression of any subsequent incriminating statements.
A. MORAN V BURBINE
The United States Supreme Court has addressed this question for purposes of the
federal criminal justice system in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed
2d 410 (1986), in which it held that the failure of police to inform a suspect of the efforts
of an attorney to reach that suspect does not deprive the suspect of his right to counsel or
otherwise invalidate the waiver of his Miranda rights. In Moran, the defendant confessed
to the murder of a young woman after he had been informed of, and waived, his Miranda
rights. While the defendant was in custody, his sister retained an attorney to represent
him. The attorney then contacted the police and was assured that all questioning would
cease until the next day. However, less than an hour later, the police resumed
interrogation of the defendant, and he confessed soon thereafter. At no point during the
interrogation did the defendant request an attorney, and at no point did the police inform
him that an attorney had contacted them. Before trial, the defendant moved to suppress
his confession on the basis that “the police’s failure to inform him of the attorney’s
telephone call deprived him of information essential to his ability to knowingly waive his
Fifth Amendment rights.” Id. at 421. However, the trial court denied the defendant’s
motion, concluding that he had received Miranda warnings, and had “knowingly,
intelligently, and voluntarily waived his privilege against self-incrimination [and] his
right to counsel.” Id. at 418. The defendant was subsequently convicted of murder. The
8
Rhode Island Supreme Court affirmed his conviction, and the federal district court denied
his habeas corpus petition. The federal appellate court, however, reversed the conviction.
On further appeal, the United States Supreme Court reinstated the defendant’s conviction,
asserting as follows:
Events occurring outside of the presence of the suspect and entirely
unknown to him surely can have no bearing on the capacity to comprehend
and knowingly relinquish a constitutional right. Under the analysis of the
Court of Appeals, the same defendant, armed with the same information
and confronted with precisely the same police conduct, would have
knowingly waived his Miranda rights had a lawyer not telephoned the
police station to inquire about his status. Nothing in any of our waiver
decisions or in our understanding of the essential components of a valid
waiver requires so incongruous a result. No doubt the additional
information would have been useful to respondent; perhaps even it might
have affected his decision to confess. But we have never read the
Constitution to require that the police supply a suspect with a flow of
information to help him calibrate his self-interest in deciding whether to
speak or stand by his rights. Once it is determined that a suspect’s decision
not to rely on his rights was uncoerced, that he at all times knew he could
stand mute and request a lawyer, and that he was aware of the State’s
intentions to use his statements to secure a conviction, the analysis is
complete and the waiver is valid as a matter of law. [Id. at 422-423
(citations omitted).]
Any culpability on the part of the police inherent in their failing to inform the
defendant of the attorney’s availability had no bearing on the validity of his Miranda
waiver:
[W]hether intentional or inadvertent, the state of mind of the police
is irrelevant to the question of the intelligence and voluntariness of [the
defendant’s] election to abandon his rights. Although highly inappropriate,
even deliberate deception of an attorney could not possibly affect a
suspect’s decision to waive his Miranda rights unless he were at least aware
of the incident. . . . Granting that the “deliberate or reckless” withholding
of information is objectionable as a matter of ethics, such conduct is only
relevant to the constitutional validity of a waiver if it deprives a defendant
of knowledge essential to his ability to understand the nature of his rights
9
and the consequences of abandoning them. Because respondent’s voluntary
decision to speak was made with full awareness and comprehension of all
the information Miranda requires the police to convey, the waivers were
valid. [Id. at 423-424 (citations omitted).]
A rule requiring a suspect to be kept apprised of an attorney’s presence in order for his
Miranda waiver to be valid would unsettle Miranda’s balance between protection of a
suspect’s Fifth Amendment rights and the maintenance of effective and legitimate law
enforcement practices:
Because, as Miranda holds, full comprehension of the rights to
remain silent and request an attorney are sufficient to dispel whatever
coercion is inherent in the interrogation process, a rule requiring the police
to inform the suspect of an attorney’s efforts to contact him contribute to
the protection of the Fifth Amendment privilege only incidentally, if at all.
This minimal benefit, however, would come at a substantial cost to
society’s legitimate and substantial interest in securing admissions of guilt.
[Id. at 427.]
Moran concluded that “nothing disables the States from adopting different requirements
of the conduct of its employees and officials as a matter of state law.” Id. at 428.
B. PEOPLE V BENDER
This Court reached a different conclusion from that of Moran in Bender, 452 Mich
594 (1996), holding that for a suspect’s Miranda waiver to be made “knowingly and
intelligently,” police officers must promptly inform a suspect that an attorney is available
when that attorney has made contact with them. In Bender, two defendants, Jamieson
Bender and Scott Zeigler, were arrested for a series of thefts and taken into custody. An
officer informed Bender’s mother of his arrest. Subsequently, Bender’s father called an
attorney, who agreed to represent his son. When the attorney called the police and sought
to speak with Bender, she was not permitted to do so. Defendant Ziegler’s mother called
10
an attorney, who instructed her go to the police station and tell her son not to speak with
anyone before speaking with the attorney. Police also did not allow Ziegler’s mother to
see her son and communicate the attorney’s message. Without informing the defendants
of their attorneys’ efforts to contact them, police read the defendants their Miranda
rights, defendants waived these rights, and each offered incriminating statements
concerning their involvement in the thefts. At no point did the defendants request an
attorney or assert their rights either to remain silent or to have counsel.
This Court adopted a per se rule that a suspect who has an attorney waiting in the
wings does not make a “knowing and intelligent” waiver of his Miranda rights when the
police have failed to inform him that an attorney has been made available to him and is at
his disposal. Id. at 620 (opinion by CAVANAGH, J.). See also id. at 621 (opinion by
BRICKLEY, C.J.). Although Justices LEVIN and MALLETT concurred with Justice
CAVANAGH’s lead opinion grounding the rule in Michigan’s 1963 Constitution, the
Court’s holding was not ultimately grounded upon constitutional principles. Rather,
Chief Justice BRICKLEY concurred with the result reached in the lead opinion, but
declined to rely upon its interpretation of the Constitution, instead declaring that the
requirement that an accused must be informed of an attorney’s efforts to contact him
constituted, as did Miranda itself at the time, a “prophylactic,” or precautionary, rule. Id.
at 620-621 (opinion by BRICKLEY, C.J.).5 Justices CAVANAGH, LEVIN, and MALLETT
5
In Dickerson v United States, 530 US 428, 438-440, 444; 120 S Ct 2326; 147 L Ed 2d
405 (2000), the United States Supreme Court determined that although Miranda is
“prophylactic in nature,” it is nonetheless a “constitutional rule that Congress may not
supersede legislatively.”
11
also joined Chief Justice BRICKLEY’s concurrence, making it the operative opinion in the
case.6 Justice BOYLE, joined by Justices RILEY and WEAVER, dissented.
Although it did not provide the operative holding, the lead opinion grounded its
reasoning upon independent state constitutional grounds, concluding, “we hold that, on
the basis of Const 1963, art 1, § 17, neither defendant Bender nor defendant Zeigler made
a knowing and intelligent waiver of his rights to remain silent and to counsel, because the
police failed to so inform them [that attorneys had been retained and sought to contact
them] before they confessed.”7 Id. at 614 (opinion by CAVANAGH, J.). Holding
otherwise would “encourage the police to do everything possible, short of a due process
violation, to prevent an attorney from contacting his client before or during
interrogation.” Id. at 615. To further sustain its conclusion, the lead opinion also noted
that this Court has held that “the Michigan Constitution imposes a stricter requirement for
a valid waiver of the rights to remain silent and to counsel than those imposed by the
federal constitution.” Id. at 611, citing People v Wright, 441 Mich 140, 147; 490 NW2d
351 (1992). The lead opinion declined to adopt a “totality-of-the-circumstances test,”
because the “inherently coercive nature of incommunicado interrogation requires a per se
6
“The clear rule in Michigan is that a majority of the Court must agree on a ground for
decision in order to make that binding precedent for future cases.” People v Anderson,
389 Mich 155, 170; 205 NW2d 461 (1973), overruled on other grounds by People v
Hickman, 470 Mich 602; 684 NW2d 267 (2004).
7
The lead opinion acknowledged that “neither defendant’s statement was involuntary.”
Id. at 604. Consequently, the only focus was upon whether the defendants’ statements
were made “knowingly and intelligently.”
12
rule that can be implemented with ease and practicality to protect a suspect’s rights to
remain silent and to counsel.” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.).
In Chief Justice BRICKLEY’s “majority opinion,”8 he stated that
[t]his case rather clearly implicated both the right to counsel (Const 1963,
art 1, § 20) and the right against self-incrimination (Const 1963, art 1,
§ 17). I conclude that rather than interpreting these provisions, it would be
more appropriate to approach the law enforcement practices that are at the
core of this case in the same manner as the United States Supreme Court
approached the constitutional interpretation task in Miranda v Arizona;
namely, by announcing a prophylactic rule.
The right to counsel and the right to be free of compulsory self-
incrimination are part of the bedrock of constitutional civil liberties that
have been zealously protected and in some cases expanded over the years.
Given the focus and protection that these particular constitutional
provisions have received, it is difficult to accept and constitutionally justify
a rule of law that accepts that law enforcement investigators, as part of a
custodial interrogation, can conceal from suspects that counsel has been
made available to them and is at their disposal. If it is deemed to be
important that the accused be informed that he is entitled to counsel, it is
certainly important that he be informed that he has counsel. [Id. at 620-621
(opinion by BRICKLEY, C.J.) (citations omitted).]
Thus, the majority opinion, although referring to Michigan’s Constitution for its
“implications,” declined nonetheless to interpret its provisions. Rather, it concluded that
“we invite much mischief if we afford police officers ‘engaged in the often competitive
enterprise of ferreting out crime’ the discretion to decide when a suspect can and cannot
see an attorney who has been retained for a suspect’s benefit.” Id. at 622, quoting
Girodenello v United States, 357 US 480, 486; 78 S Ct 1245; 2 L Ed 2d 1503 (1958).
Instead, according to Chief Justice BRICKLEY, Bender’s rule would ensure that the
8
Although Chief Justice BRICKLEY’s opinion is labeled as a concurrence, it is practically
speaking a majority opinion, and thus I will refer to it as such throughout this opinion.
13
criminal justice system remained accusatorial and not inquisitorial in nature, because the
“good will of state agents is often insufficient to guarantee a suspect’s constitutional
rights.” Bender, 452 Mich at 623 (opinion by BRICKLEY, C.J.).
Justice BOYLE, joined by Justices RILEY and WEAVER, dissented:
[W]ithout a single foundation in the language, historical context, or
the jurisprudence of this Court, a majority of the Court engrafts its own
“enlightened” view of the Constitution of 1963, art 1, § 17, on the citizens
of the State of Michigan. With nothing more substantial than a
disagreement with the United States Supreme Court as the basis for its
conclusion, a majority of the Court ignores our obligation to find a
principled basis for the creation of new rights and imposes a benefit on
suspects that will eliminate voluntary and knowledgeable confessions from
the arsenal of society’s weapons against crime. [Id. at 624 (BOYLE, J.,
dissenting).]
According to the dissent in Bender, the guarantee against compelled self-incrimination
found in Article 1, § 17 of the Michigan Constitution provides no greater protection than
the Fifth Amendment of the United States Constitution, and there is no justification for an
interpretation of Michigan’s Constitution that affords protections differently than the
federal Constitution. Id. at 628-629. The Bender dissent concluded that
[i]n its haste to create a novel “Miranda-like right[],” a majority of the
Court blurs the distinction between the constitutional right to be free from
compelled self-incrimination and the safeguards — Miranda warnings —
created to protect that right. In effect, a majority of the Court creates
prophylactic rules to protect prophylactic rights. The argument seems to be
that it is necessary to inform a suspect that an attorney is attempting to
contact him, which, in turn, effectuates the suspect’s right to counsel,
which, in turn, effectuates a suspect’s right to remain silent, which, in turn,
effectuates a suspect’s right to be free from compelled self-incrimination.
Safeguards for safeguards is absurd and is not required by the Michigan
Constitution, the federal constitution, or Miranda.
Given . . . that neither the Michigan nor the federal constitution
require extension of the Miranda litany, the majority’s only possible
14
justification for requiring the police to inform a suspect that an attorney
wishes to speak with him must be grounded on policy concerns, not
constitutional mandates. But policy concerns also fail under proper
analysis. [Id. at 644.]
In sum, while Bender concluded that the failure of police officers to inform a suspect of
an attorney’s attempts to communicate with the suspect invalidates his Miranda waiver,
there was no agreement as to whether Michigan’s Constitution required that rule.
IV. ANALYSIS
The question presently before this Court is whether the rule of Bender should be
maintained.9 The first and most consequential inquiry in resolving this question must, of
course, pertain to whether Bender was correctly decided. We conclude that it was not,
concurring with the Bender dissent that the lead and majority opinions in that case
9
In Justice MCCORMACK’s dissent, she asserts that the instant case does not afford an
appropriate vehicle to overrule Bender because, unlike defendants in Bender, defendant
here repeatedly expressed his desire for counsel before ultimately making an
incriminating statement to the police. According to the dissent, the rule in Bender is
“sufficient” to sustain the suppression of defendant’s statement, but is not “necessary” in
order to do so, because the voluntariness of defendant’s statement was implicated, or
called into question, by defendant’s failed attempts to invoke his right to counsel.
However, in defendant’s motion to suppress, he acknowledged that his statement to law
enforcement was entirely voluntary, and argued only that his Miranda waiver had not
been undertaken knowingly and intelligently pursuant to Bender and Wright, on the basis
of the police’s failure to inform him that an attorney had been appointed on his behalf and
had sought to meet with him. Thus, whether defendant’s statement was undertaken
voluntarily is not an issue that has been raised in this Court. Furthermore, because
defendant clearly and explicitly relied on Bender in his motion to suppress, and because
the trial court also clearly and explicitly relied on Bender in granting this motion, the
instant case does indeed afford an appropriate vehicle by which to assess the precedential
value of Bender. Whether defendant’s statement should be suppressed on other
constitutional grounds can be considered on remand, provided both that such
constitutional arguments have not been precluded by defendant’s pursuit of the current
motion and that counsel offers the appropriate pretrial motions.
15
engaged in an unfounded creation of “constitutional rights,” given that the lead opinion
failed to undertake a constitutional analysis sufficient to ground rights in our “organic
instrument of state government,” Sitz v Dep’t of State Police, 443 Mich 744, 760; 506
NW2d 209 (1993), and the majority opinion failed even to consider that same “organic
instrument,” instead relying on policy concerns and fears of law enforcement “mischief.”
A. THE BENDER RULE
The Bender majority cited no Michigan law to justify its creation of a state
constitutional rule different from the United States Supreme Court’s federal constitutional
rule in Moran, ironically citing only several United States Supreme Court decisions at
variance with Moran. Nonetheless, Moran rightly acknowledged, as it must, that its
decision did not “disable[] the States from adopting different requirements for the
conduct of its employees and officials as a matter of state law.” Moran, 475 US at 428.10
However, the Bender majority neither analyzed nor compared and contrasted to its
federal counterpart the text of Article 1, § 17; cited no Michigan caselaw contrary to
Moran; and most notably declined to ground its decision upon any interpretation of state
constitutional provisions. At the same time nonetheless, the majority clearly sought to
10
“Under the Supremacy Clause, the courts of this state are obliged to enforce the rights
conferred by the United States Supreme Court even if the state constitution does not
provide such rights.” Sitz, 443 Mich at 759 (citation omitted). However, an “organic
instrument of state government” need not be “interpreted as conferring the identical
right.” Id. at 760. “It is only where the organic instrument of government purports to
deprive a citizen of a right granted by the federal constitution that the instrument can be
said to violate the constitution.” Id. at 760-761 (emphasis added). Accordingly, this
Court may interpret our Constitution in a manner that confers greater protections on a
suspect than those mandated by federal law.
16
characterize its rule as being one of constitutional provenance.11 Indeed, two years after
Bender, in People v Sexton, 458 Mich 43, 70-72; 580 NW2d 404 (1998), then Justice
BRICKLEY explained in his dissenting statement that
[w]hile the Bender rule is prophylactic in nature like Miranda, that fact
does not detract from its constitutional underpinnings. Its very purpose is
to protect a suspect’s right to counsel and the privilege against self-
incrimination. To deny the constitutional import of this rule is to ignore the
plain language set forth in Bender. [Citation omitted.]
Thus, the majority purported to articulate a state constitutional rule in Bender,
prophylactic or otherwise, distinct from the federal constitutional rule in Moran,12 while
apparently disclaiming all reliance on state constitutional provisions.
B. THE MICHIGAN CONSTITUTION
To determine whether Michigan’s Constitution supports Bender, we must construe
our Constitution. It is “a fundamental principle of constitutional construction that we
determine the intent of the framers of the Constitution and of the people adopting it,”
11
For example, the majority acknowledged that “[t]his case rather clearly implicates both
the right to counsel and the right against [compulsory] self-incrimination” before
concluding that a prophylactic rule was appropriate. Bender, 452 Mich at 620-621(opinion by BRICKLEY, C.J.) (citations omitted). The majority continued that “the right
to counsel and the right to be free of compulsory self-incrimination are part of the
bedrock of constitutional civil liberties that have been zealously protected and in some
cases expanded over the years,” and that “[g]iven the focus and protection that these
particular constitutional provisions have received, it is difficult to accept and
constitutionally justify a rule of law that accepts that law enforcement investigators, as
part of a custodial interrogation, can conceal from suspects that counsel has been made
available to them and is at their disposal.” Id. at 621.
12
The Bender Court had the undeniable authority to articulate a state constitutional rule
as long as the individual protections set forth in Moran were not contracted.
17
Holland v Heavlin, 299 Mich 465, 470; 300 NW 777 (1941), and we do this principally
by examining its language. Bond v Ann Arbor Sch Dist, 383 Mich 693, 699-700; 178
NW2d 484 (1970). And we must do this even in the face of existing decisions of this
Court pertaining to the same subject because there is no other judicial body, state or
federal, that possesses the authority to correct misinterpretations of the Michigan
Constitution.
“In interpreting our Constitution, we are not bound by the United States Supreme
Court’s interpretation of the United States Constitution, even where the language is
identical.” People v Goldston, 470 Mich 523, 534; 682 NW2d 479 (2004) (citation
omitted). Rather, “[this Court] must determine what law ‘the people have made.’ ” Id.(citation omitted). “[W]e may not disregard the guarantees that our constitution confers
on Michigan citizens merely because the United States Supreme Court has withdrawn or
not extended such protection” under the federal Constitution. Sitz, 443 Mich at 759. As
explained in Sitz:
[T]he courts of this state should reject unprincipled creation of state
constitutional rights that exceed their federal counterparts. On the other
hand, our courts are not obligated to accept what we deem to be a major
contraction of citizen protections under our constitution simply because the
United States Supreme Court has chosen to do so. We are obligated to
interpret our own organic instrument of government. [Id. at 763.]
While members of this Court take an oath to uphold the United States Constitution, we
also take an oath to uphold the Michigan Constitution,13 which is the enduring expression
13
Const 1963, art 11, § 1 states: “All officers, legislative, executive and judicial, before
entering upon the duties of their respective offices, shall take and subscribe the following
oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of
18
of the will of “we, the people” of this state.14 In light of these separate oaths of office, we
need not, and cannot, defer to the United States Supreme Court in giving meaning to the
latter charter.15 Instead, it is this Court’s obligation to independently examine our state’s
Constitution to ascertain the intentions of those in whose name our Constitution was
“ordain[ed] and establish[ed].”16 Accordingly, we must examine the text and history of
the United States and the constitution of this state, and that I will faithfully discharge the
duties of the office . . . according to the best of my ability.” See also US Const, art VI.
14
Const 1963, art 1, § 1 states: “All political power is inherent in the people.
Government is instituted for their equal benefit, security and protection.”
15
There is a reason why the United States and Michigan Constitutions should be read
differently; namely, “we, the people” of the State of Michigan created Michigan’s
Constitution, and interpretations of this Constitution must reflect that will, and “we the
people of the United States” created the United States Constitution, and interpretations of
that Constitution must reflect that will. These are distinct constitutions and distinct
citizenries, and this Court must independently analyze our state Constitution to ensure
that our citizens are receiving the measure of the protections that they created, which
protections may or may not extend beyond those set forth by the federal Constitution.
16
While there might well be an informal presumption that a United States Supreme Court
interpretation of a federal constitutional provision constitutes the proper interpretation of
a similar or identical state constitutional provision, this Court need not apply that
presumption, and it need not defer to an interpretation of the United States Supreme
Court, unless we are persuaded that such an interpretation is also most faithful to the state
constitutional provision. This Court has on occasion seemed to suggest that there is some
specific burden on this Court to identify a “compelling reason” or justification for
interpreting the words of the Michigan Constitution differently than the words of the
United States Constitution. See, e.g., People v Nash, 418 Mich 196, 214-215; 341 NW2d
439 (1983) (“We have, on occasion, construed the Michigan Constitution in a manner
which results in greater rights than those given by the federal constitution, and where
there is compelling reason, we will undoubtedly do so again.”) (citations omitted); People
v Collins, 438 Mich 8, 25; 475 NW2d 684 (1991) (“[A]rt 1, § 11 is to be construed to
provide the same protection as that secured by the Fourth Amendment, absent
‘compelling reason’ to impose a different interpretation.”) (citations omitted). However,
this cannot precisely describe this Court’s relationship with the federal judiciary, even
with the United States Supreme Court. While it may almost always be prudent and
19
Article 1, § 17, as well as this Court’s precedents pertaining to this provision, in order to
ascertain both whether Bender was correctly decided and whether there is persuasive
force in the United States Supreme Court’s decision in Moran.17
1. CONSTITUTIONAL TEXT
“The primary objective in interpreting a constitutional provision is to determine
the text’s original meaning to the ratifiers, the people, at the time of ratification.” Wayne
Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). “The first rule a court should
responsible for this Court to examine federal precedents when they pertain to the same or
similar language as in the Michigan Constitution, our responsibility in giving meaning to
the Michigan Constitution must invariably focus upon its particular language and history,
and the specific intentions of its ratifiers, and not those of the federal Constitution.
Simply put, our exercise of judgment concerning the reasonable meaning of the
provisions of our state Constitution cannot, consistently with our oath of office and our
structure of constitutional federalism, be delegated to another judicial body.
17
This Court has referred to various factors that may be relevant in determining whether
Michigan’s Constitution supports an interpretation that differs from that of the United
States Constitution:
1) the textual language of the state constitution, 2) significant textual
differences between parallel provisions of the two constitutions, 3) state
constitutional and common-law history, 4) state law preexisting adoption of
the relevant constitutional provision, 5) structural differences between the
state and federal constitutions, and 6) matters of peculiar state or local
interest. [Collins, 438 Mich at 31 n 39, citing People v Catania, 427 Mich
447, 466 n 12; 398 NW2d 343 (1986).]
We continue to believe that the application of these factors will often prove helpful to this
Court in the interpretation of particular state constitutional provisions. However, we also
believe that examination of these factors collectively supports the conclusion that the
ultimate task facing this Court in cases requiring interpretation of particular Michigan
constitutional provisions is to respectfully consider federal interpretations of identical or
similar federal constitutional provisions, but then to undertake by traditional interpretive
methods to independently ascertain the meaning of the Michigan Constitution.
20
follow in ascertaining the meaning of words in a constitution is to give effect to the plain
meaning of such words as understood by the people who adopted it.” Bond, 383 Mich at
699. “In applying this principle of construction, the people are understood to have
accepted the words employed in a constitutional provision in the sense most obvious to
the common understanding and to have ‘ratified the instrument in the belief that that was
the sense designed to be conveyed.’ ” People v Nutt, 469 Mich 565, 573-574; 677 NW2d
1 (2004) (citation omitted).
The text of Article 1, § 17 of the Michigan Constitution does not, in our judgment,
provide for the rights articulated in Bender, when it states in the same words as the Fifth
Amendment to the United States Constitution that “no person shall be compelled in any
criminal case to be a witness against himself.”18 Ascertaining the “plain meaning” of
“compelled” is of critical importance to our textual analysis, as we must determine
precisely what type of protection the ratifiers intended to confer. The 1828 edition of
Webster’s American Dictionary of the English Language defined “compel” as “[t]o drive
or urge with force, or irresistibly”; “to constrain”; “to oblige”; or “to necessitate, either by
physical or moral force.” At the time that our 1963 Constitution was ratified, the term
18
Michigan’s Constitution of 1835 did not contain a self-incrimination provision;
however, the current provision was incorporated shortly thereafter in 1850. Const 1850,
art 6, § 32. This provision remained unchanged in Article 2, § 16 of Michigan’s
Constitution of 1908 and in Article 1, § 17 of Michigan’s Constitution of 1963. In 1963,
Article 1, § 17 was amended to add “the right of all individuals, firms, corporations and
voluntary associations to fair and just treatment in the course of legislative and executive
investigations and hearings shall not be infringed,” but the self-incrimination part of the
provision remained unchanged. Thus, the language of the Michigan Constitution’s self-
incrimination provision has remained consistent since its incorporation in 1850.
21
“compel” was commonly defined as “to force by physical necessity or evidential fact”;
“to urge irresistibly by moral or social pressure”; “to domineer over so as to force
compliance or submission”; or “to obtain by force, violence, or coercion.” Webster’s
Third New International Dictionary (1961). Thus, at the time of the ratification of
Article 1, § 17, the word “compel” referred to the use of coercion, violence, force, or
pressure, all of which are relevant factors in assessing the genuine voluntariness of a
confession.
The remainder of the terms contained in Article 1, § 17 require no individual
examination, as their plain meanings appear “obvious to the common understanding.”
Accordingly, applying the definition of “compel” to the remainder of the language of
Article 1, § 17, we find that the compelled self-incrimination provision in its entirety can
be understood to provide that “no person shall be [coerced, forced, or pressured] in any
criminal case to be a witness against himself.” Given the provision’s focus on a coercive
custodial environment, Article 1, § 17 can be reasonably understood to protect a suspect
from the use of his involuntary incriminating statements as evidence against him in a
criminal case. Consequently, the text of Article 1, § 17 does not support Bender, which
pertains not to the voluntariness of the confession itself, but to whether a suspect’s
Miranda waiver has been made “knowingly.” That is, there was no dispute in Bender as
to the voluntariness of the defendant’s confession, only as to whether his Miranda waiver
could be made “knowingly” absent awareness of an attorney’s efforts to contact him; the
22
coercion or pressure contemplated by the text of Article 1, § 17, which relates to the
voluntariness of a confession, was not implicated.19
2. CONSTITUTIONAL CONVENTION
When interpreting a constitutional provision, “[r]egard must also be given to the
circumstances leading to the adoption of the provision and the purpose sought to be
accomplished.” People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (citation
omitted). In determining the meaning of particular constitutional provisions to the
ratifiers of the Constitution, this Court has noted that “constitutional convention debates
and the address to the people, though not controlling, are relevant.” Id. (citation
omitted).20 The primary focus should be on “any statements [the delegates] may have
19
We need not decide whether our interpretation of “compel” for purposes of Article 1,
§ 17 is fully in accord with Miranda’s interpretation of the same term for purposes of the
Fifth Amendment, given that Miranda has established an irreducible minimum standard
for purposes of all custodial interrogations in Michigan, as well as those in every other
state. Further, such a comparison would be irrelevant to our assessment of Bender, as
Bender’s interpretation of “compel” goes beyond its meaning as contemplated by either
Article 1, § 17 or Miranda. Pursuant to Bender, a suspect’s voluntary Miranda waiver,
made with full knowledge of his Miranda rights, can nonetheless be considered
“compelled” for purposes of Article 1, § 17, and therefore invalid, solely because that
suspect was not informed of an attorney’s efforts to contact the suspect. Accordingly,
Bender renders incriminating statements or confessions inadmissible by finding
“compulsion” when there existed no form of the coercion, violence, force, or pressure
contemplated by either the text of Article 1, § 17, or by the United States Supreme Court
in its analysis of what it viewed as more subtle and nuanced forms of coercion in
Miranda.
20
Indeed, constitutional conventions, as a distinctive form of “super legislative history,”
deriving from the source of authority of the constitution itself, “we, the people,” may be
highly valuable in interpreting constitutional provisions:
“[T]he constitutional convention is a distinctively American
contribution to political theory and action . . . . [I]t is the personification of
23
made that would have shed light on why they chose to employ the particular terms they
used in drafting the provision to aid in discerning what the common understanding of
those terms would have been when the provision was ratified by the people.” Studier v
Mich Pub Sch Employees’ Retirement Bd, 472 Mich 642, 656-657; 698 NW2d 350
(2005) (citation omitted).21
However, the records pertaining to Article 1, § 17 provide few such clues. There
appears to have been no debate on the provision when it was first incorporated. When
the Constitution was ratified in 1908, the Self-Incrimination Clause remained unchanged
from the 1850 version, and the accompanying Address to the People in 1908 stated
simply, “[n]o change from Sec. 32, Art. VI of the present constitution.” Journal of the
Constitutional Convention 1907-1908, p 1542. Although Article 1, § 17 was ratified in
1963, the only change was the addition of language that had no bearing on the Self-
Incrimination Clause, and it was only the new language that was the subject of any
convention debate or explication. 1 Official Record, Constitutional Convention 1961,
the sovereign people assembled for the discharge of the solemn duty of
framing their fundamental law.” [Schlam, State Constitutional Amending,
Independent Interpretation, & Political Culture, 43 DePaul L Rev 269, 320
n 148 (1994), quoting Walker, Myth & Reality in State Constitutional
Development, in Major Problems in State Constitutional Revision (Graves,
ed, 1960), p 15 (alterations in original).]
21
For example, in People v Nash, this Court concluded that it should interpret Michigan’s
Constitution differently than the United States Supreme Court’s interpretation of the
Fourth Amendment, in part because the records of the Michigan Constitutional
Convention of 1961 indicated that the addition of an anti-exclusionary-rule provision was
made in a particularly aggressive attempt by the delegates to assert state sovereignty in
reaction to the United States Supreme Court decision in Mapp v Ohio, 367 US 643; 81 S
Ct 1684; 6 L Ed 2d 1081 (1961). Nash, 418 Mich at 211-213.
24
pp 545-553; 2 Official Record, Constitutional Convention 1961, p 3364. We find nothing
in the records of the constitutional conventions to suggest that Article 1, § 17 means
anything different from what its text most reasonably expresses.
3. CONSTITUTIONAL CASELAW
Although the text of Article 1, § 17 has mirrored its federal counterpart since its
incorporation, the conclusion does not follow that this Court has interpreted the provision
identically to the United States Supreme Court’s interpretation of the Fifth Amendment.
Consequently, it is necessary to examine this Court’s precedent to determine whether
caselaw in any way supports or contradicts Bender.
Before Bender, this Court had previously addressed the effect of an attorney’s
attempts to contact a suspect on the admissibility of the suspect’s confession in People v
Cavanaugh, 246 Mich 680; 225 NW 501 (1929), and People v Wright, 441 Mich 140;
490 NW2d 351 (1992), the latter cited in Bender and both cited by defendant in this case.
However, neither opinion provides the foundation for Bender’s proposition that Michigan
courts have historically interpreted Michigan’s compulsory self-incrimination provision
to provide criminal suspects with greater protections than those afforded by the Fifth
Amendment.
In Cavanaugh, the juvenile defendant was sentenced to prison for life for
committing a rape in light of evidence that the victim identified his voice and given his
alleged confession of guilt. The defendant testified at trial that the police had questioned
him at night, that he had not been permitted to sleep, and that he asked for and was
denied an attorney. An attorney who had been retained by the defendant’s father came to
25
the police station, but was refused access to the defendant until the attorney proceeded to
the courthouse to obtain a writ of habeas corpus. It is unclear if the defendant was aware
of the attorney’s presence, but in any event, he admitted to committing the crime. At
trial, the defendant repudiated this confession, claiming it had been extorted by duress,
brow-beating, intimidation, and by holding him incommunicado. The lower court
sustained the prosecutor’s objection to the defendant’s proposed testimony regarding the
circumstances surrounding his confession and did not permit the defendant to introduce
evidence pertaining to his claim that police officers had held him incommunicado.
On appeal, this Court reversed the defendant’s conviction and remanded for a new
trial, concluding that the “[d]efendant had an undoubted right to lay before the jury his
full claim of what the police said to him, and it was for the jury to say whether, under all
the circumstances, the confession was voluntary.” Cavanaugh, 246 Mich at 686. This
Court continued:
[A] confession, extorted by mental disquietude, induced by
unlawfully holding an accused incommunicable, is condemned by every
principle of fairness, has all the evils of the old-time letter de cachet, is
forbidden by the constitutional guaranty of due process of law, and
inhibited by the right of an accused to have the assistance of counsel . . . .
Holding an accused incommunicable to parents and counsel is a subtle and
insidious method of intimidating and cowing, tends to render a prisoner
plastic to police assertiveness and demands, and is a trial of mental
endurance under unlawful pressure.
* * *
The defendant was held incommunicable. He could not send for or
employ counsel. His father was refused right to see him. When an
attorney, presumably employed by his father, appeared at the jail and asked
to see defendant, he was refused the right to do so until the attorney started
for the courthouse to get a writ of habeas corpus. In this State a parent may
not be denied the right to see and have conversation with a child in jail and
26
accused of crime. Neither may police, having custody of one accused of
crime, deny an attorney, employed by or in behalf of a prisoner, the right to
see and advise the accused. [Id. at 686, 688 (emphasis added).]
This Court concluded that “[w]hether defendant’s call for father, mother, attorney, and
priest did not make any difference upon the question of his alleged confession being
voluntary was for the jury.” Id. at 688-689. Consequently, defendant was entitled to a
new trial, “at which the most searching examination of all the circumstances surrounding
his alleged confession will be permitted.” Id. at 689.
Although Cavanaugh, like Bender, addressed the admissibility of a confession in a
circumstance in which an attorney had been denied access to a person facing custodial
interrogation, Cavanaugh is distinguishable from Bender in at least three significant
ways, and cannot provide its foundation. First, whereas Bender pertained to whether the
defendants’ waivers of their Miranda rights were made “knowingly,” Cavanaugh
pertained only to whether the defendant’s confession was made voluntarily, as Miranda
had not yet introduced into the Fifth Amendment analysis the rule that a defendant cannot
be subject to custodial interrogation absent a “voluntary, knowing, and intelligent”
waiver of Miranda rights.22 Because there was no dispute in Bender regarding the
voluntary nature of defendants’ incriminating statements, Cavanaugh’s analysis
concerning voluntariness cannot provide support for Bender. Second, Cavanaugh
appropriately considered multiple factors-- only one of which was the police officer’s
22
There are two distinct “voluntariness” inquiries that must be considered in analyzing
the admissibility of an incriminating statement or confession. First, the incriminating
statement or confession itself must have been made voluntarily. Second, a suspect’s
Miranda waiver must have been made voluntarily. These distinct concepts of
“voluntariness” must be borne in mind in assessing both Bender and Moran.
27
refusal to allow an attorney access to the defendant-- in its “totality of the circumstances”
analysis to assess whether the defendant’s confession was made voluntarily, an analysis
which at that time was the accepted mechanism for determining compliance with
constitutional standards. However, Bender’s rule, invalidating all “unknowing” Miranda
waivers, is a per se rule that pertains to just a single factor. Cavanaugh cannot possibly
support this per se rule, given that Cavanaugh provided no indication that this Court had
ever determined that just one of its several factors-- the police officer’s refusal to allow
the attorney to see the defendant-- gave rise to an independent and per se constitutional
right.23 Third, in Cavanaugh, the juvenile defendant requested and was refused an
attorney. This Court properly considered the defendant’s rejected request for an attorney
as one factor in its voluntariness analysis. In contrast, in Bender, the defendants never
requested an attorney before waiving their Miranda rights and providing incriminating
23
Justice CAVANAGH’s dissent misapprehends this point by stating “the majority argues
that Cavanaugh cannot support Bender because Cavanaugh employed a ‘totality of the
circumstances’ rule rather than the per se rule applied in Bender. The fact that
Cavanaugh and Bender differed on what test should result from police interference with
counsel’s efforts to speak to a suspect does not lessen the fact that both Cavanaugh and
Bender agreed that such police conduct is unconstitutional under the Michigan
Constitution.” Post at 12. However, our point is not that Cavanaugh’s application of a
totality of the circumstances test instead of a per se rule is fatal to Bender, but is instead
that by concluding that the police’s refusal to allow the attorney to see the defendant was
only one factor among many that might have rendered the defendant’s confession
involuntary, Cavanaugh nowhere concluded that such failure alone would render a
confession inadmissible. In other words, because this Court concluded that the jury
should hear a host of factors to determine whether the defendant’s confession was
voluntary, a single factor-- that counsel’s requests to speak to the defendant were refused-
- cannot be identified and cited for the proposition that Cavanaugh established as a matter
of constitutional principle that a defendant must be informed of an attorney’s attempts to
contact him in order for his subsequent confession to be admissible.
28
statements.24 Accordingly, the defendants perceived no rejected request that could act to
create a coercive atmosphere and potentially call into question the voluntariness of their
statements. Given these significant differences, Cavanaugh lends no support, we believe,
to the notion that Michigan’s Constitution supports the per se rule of Bender.25
In Wright, the defendant was arrested for murder, taken to the police station at
around 5:00 a.m., and informed of his Miranda rights. The defendant ultimately offered
an incriminating statement to police officers after being deprived of food, water, and a
place to sleep for a total of eleven hours while awaiting questioning. Before the
defendant made his statement, his family retained an attorney who made at least two trips
to the police station, requesting to speak with the defendant. Police officers refused the
attorney’s request both times. The defendant ultimately gave a statement to the police
without being informed of the attorney’s efforts to reach him. Before trial, the defendant
filed a motion to suppress his statement. At the suppression hearing, the trial court
denied the defendant’s motion, concluding that the defendant had never expressly asked
for an attorney. The trial court relied on Moran, reasoning that “although the police
conduct was reprehensible, the law did not require the suppression of defendant’s
24
Similarly, in the case at hand, defendant failed to request an attorney after reinitiating
contact with police and before waiving his Miranda rights and making an incriminating
statement, despite the fact that defendant knew he could request an attorney, as he had
done so the day before.
25
It should be noted that, were the circumstances in Cavanaugh to arise today, the
confession would be inadmissible, as the officers ignored the defendant’s assertion of his
right to counsel and continued to interrogate him, contrary to Miranda, 384 US at 473-
474.
29
statements.” Wright, 441 Mich at 145-146 (opinion by MALLETT, J.). The Court of
Appeals affirmed, declining to impose more stringent standards on police conduct than
the United States Supreme Court imposed in Moran. The defendant then appealed in this
Court, and we granted leave to appeal to consider “whether a defendant has a right to
know of his attorney’s efforts to contact him” and “whether the failure by police to
provide a defendant with proper food, water, or opportunity to sleep, renders a
defendant’s statements involuntary.” Id. at 146.
In an opinion by Justice MALLETT, joined by Justice LEVIN, and separate opinions
by Chief Justice CAVANAGH and Justice BRICKLEY, this Court suppressed the
defendant’s statements. The fragmented decision resulted in no binding precedent. In
the lead opinion, Justice MALLET concluded that the confession had to be suppressed
because a suspect must be informed of an attorney’s in-person attempts to contact him, as
Michigan’s Constitution provides for such a right. Id. at 154-155. This opinion stated as
follows:
[U]nder our state’s laws, we conclude that [defendant] did not make
a knowing, voluntary, and intelligent waiver of his rights when the police,
before he made a statement, refused to inform him that retained counsel
tried or was currently trying to contact him. Without this knowledge, [the
defendant] could not make a truly voluntary waiver of his essential rights.
Given the opportunity to speak to a specific, retained and available
attorney, [defendant’s] decision may have been different.
* * *
Under Const 1963, art 1, § 17, a criminal suspect is given the right
against self-incrimination, a right similar to that provided in the Fifth
Amendment of the United States Constitution. This Court has held that the
interpretation of our constitutional privilege against self-incrimination and
that of the Fifth Amendment are the same. In re Moser, 138 Mich 302,
305; 101 NW 588 (1904). However, as the United States Supreme Court
30
concluded in Moran, states are free to adopt more protective standards
under state law. Because we believe that it was necessary, in order to allow
[defendant] to make a knowing and fully voluntary waiver of his Fifth
Amendment rights, we extend the rights afforded under Const 1963, art 1,
§ 17, to include information of retained counsel’s in-person efforts to
contact a suspect. [Id. at 153-154 (citations omitted.]
In his separate concurrence, Chief Justice CAVANAGH agreed with Justice MALLETT’s
conclusion that the defendant’s statement had to be suppressed and with Justice
MALLETT’s analysis in interpreting Michigan’s constitutional privilege against self-
incrimination “more broadly” than the Fifth Amendment. Chief Justice CAVANAGH
wrote separately to emphasize that the “conclusion is even more clearly supported on the
ground that the police conduct in this case violated defendant’s right to counsel under
Const 1963, art 1, § 20.” Id. at 155-156 (CAVANAGH, C.J., concurring). In a separate
concurring opinion, Justice BRICKLEY agreed that suppression of the defendant’s
statement was necessary, but based his decision on his conclusion that the defendant’s
Miranda waiver was made involuntarily, citing the “eleven-hour incommunicado
interrogation during which [the defendant] was deprived of food, sleep, and contact with
friendly outsiders, combined with the fact that he was not informed of available retained
counsel.” Id. at 172 (BRICKLEY, J., concurring). Justice RILEY dissented, joined by
Justices BOYLE and GRIFFIN, concluding that defendant had knowingly waived his right
to consult with an attorney before making his statement, and that the “objectionable”
police conduct did not amount to a constitutional violation. Id. at 179-180 (RILEY, J.,
dissenting). The dissent noted that “[t]here is nothing conspicuous in the language of the
Michigan Constitution that would distinguish it from the rights guaranteed by the federal
constitution.” Id. at 177.
31
Wright cannot provide the foundation for Bender, because it produced no
consensus that Article 1, § 17 of Michigan’s Constitution imposes greater requirements
for a valid waiver of the rights to remain silent and to counsel than those imposed by the
federal Constitution,26 and its lead opinion, much like Bender’s majority opinion,
suffered from scant analysis. The lack of analysis in both opinions is accounted for by
the simple fact that there is no basis in the Michigan Constitution for the decisions
reached in those opinions. That is, it is not the failure of analyses in these opinions that
militates against their extension of Miranda; it is the absence of any language in the
Michigan Constitution that would sustain such an analysis, and that is why each of these
opinions is so barren of constitutional exegesis. Only Justice MALLETT’s lead opinion in
Wright explicitly “extend[ed] the rights afforded under Const 1963, art 1, § 17” to
provide greater protection than those afforded by the Fifth Amendment. Wright, 441
Mich at 154 (opinion by MALLETT, J.). Justice LEVIN concurred, and Justice CAVANAGH
agreed with Justice MALLETT’s analysis, but no other member of this Court accepted the
lead opinion’s proposition, and Justice RILEY, joined by Justices BOYLE and GRIFFIN,
explicitly rejected such a conclusion in her dissent. In any event, the lead opinion cannot
provide a foundation for Bender, as it peremptorily concluded that the “accusatorial”
nature of our criminal justice system warranted an “exten[sion of] the rights afforded
26
Despite this, Bender’s lead opinion stated that “[i]n Wright, this Court held that the
Michigan Constitution imposes a stricter requirement for a valid waiver of the rights to
remain silent and to counsel than imposed by the federal constitution.” Bender, 452 Mich
at 611 (opinion by CAVANAGH, J.).
32
under Const 1963, art 1, § 17,” without anywhere confronting the language of this
provision or assessing in any way the intentions of the ratifiers.
Instead, in opining that Article 1, § 17 requires police to inform suspects of an
attorney’s efforts to contact a suspect in order that a Miranda waiver be valid, the lead
opinion acknowledged that it “disagree[d]” with the Supreme Court’s conclusion to the
contrary in Moran, and noted that “states are free to afford their citizens greater
protection than that granted by the federal government.” Wright, 441 Mich at 148(opinion by MALLETT, J.). Doubtless this is true, but such authority on our part does not
relieve us from the obligation to ground our actions within our own Constitution. The
lead opinion opined further, “[o]ther states have considered [Moran’s] question and have
concluded that it is necessary for a suspect to be informed of an attorney’s attempted
contacts,” and proceeded to summarize the decisions of the highest state courts of
Connecticut, Delaware, and Oregon. Id. at 148-153. Such an observation, while also
entirely appropriate as a prelude to extending Miranda, also does not relieve us of the
obligation to “determine what law ‘the people [of Michigan] have made.’ ” Sitz, 443
Mich at 759. This obligation is best accomplished by some effort to examine the
language of our Constitution that purportedly supplies the basis for the newly discovered
constitutional right, Bond, 383 Mich at 699-700, in this instance, Article 1, § 17.
However, without engaging in any such analysis, the lead opinion turned to the facts of
Wright, and offered the following:
As Justice Stevens so eloquently stated, “[t]he recognition that ours
is an accusatorial, and not an inquisitorial system nevertheless requires that
the government’s actions, even in responding to this brutal crime, respect
those liberties and rights that distinguish this society from most others.”
Moran, [475 US] at 436 (Stevens, J., dissenting). Accordingly, under our
33
state’s laws, we conclude that Mr. Wright did not make a knowing,
voluntary, and intelligent waiver of his rights when the police, before he
made a statement, refused to inform him that retained counsel tried or was
currently trying to contact him. Without this knowledge, Mr. Wright could
not make a truly voluntary waiver of his essential rights. Given the
opportunity to speak to a specific, retained and available attorney, Mr.
Wright’s decision may have been different. [Wright, 441 Mich at 153(opinion by MALLETT, J.).]
The lead opinion concluded that while “this Court has held that the interpretation of our
constitutional privilege against self-incrimination and that of the Fifth Amendment are
the same,” it was nevertheless appropriate to “extend the rights afforded by Const 1963,
art 1, § 17, to include information of retained counsel’s in-person efforts to contact a
suspect.” Id. at 154. The opinion was correct that this Court may interpret our
constitution to afford greater protections than those afforded by the Fifth Amendment.
However, the opinion did not perform the constitutional analysis necessary to “determine
the intent of the framers and of the people adopting it,” Holland, 299 Mich at 470.
Consequently, Wright’s “exten[sion of] the rights afforded under Const 1963, art 1,
§ 17,” cannot provide Bender’s foundation, because that extension was not supported by
a majority of this Court, and it was not based on any semblance of the constitutional
analysis necessary to ground new rights in the Michigan Constitution, an analysis that
would seem to be of particular prudence in distinguishing an interpretation of a provision
of the Michigan Constitution from a United States Supreme Court interpretation of the
United States Constitution. Cf. Nash, 418 Mich at 209.
34
While this analysis indicates that there is no precedent specifically undergirding
Bender,27 it is also relevant to examine this Court’s caselaw pertaining to Article 1, § 17,
as well as to the admissibility of confessions in general, to inquire whether there is any
other historical support from this Court for Bender. Specifically, we examine whether
there is any precedent that foreshadowed Bender by suggesting either that (a) this Court
has interpreted the self-incrimination provision of Article 1, § 17 to extend beyond the
protections afforded by the Fifth Amendment; or (b) this Court has interpreted the self-
incrimination provision of Article 1, § 17 as focused on something other than the
voluntariness of a confession.
Concerning the first matter of exploration, there is no precedent that serves as a
precursor to Bender by affording protections under Article 1, § 17 greater than those
27
Justice CAVANAGH’s dissent alleges that Cavanaugh provided specific support for
Bender, as the justices in support of Bender “necessarily relied on Cavanaugh (as
evidenced by the Bender opinion’s citations to the Wright opinions, which cited
Cavanaugh) as the primary source for the broader interpretation of the right against self-
incrimination under the Michigan Constitution.” Post at 19. However, Bender did not
once cite Cavanaugh, and although several opinions in Wright did cite Cavanaugh, none
cited it for the proposition that Michigan’s right against compulsory self-incrimination
affords greater protections than those afforded by the Fifth Amendment. In Wright,
Justice MALLETT did not cite Cavanaugh in the lead opinion; Justice CAVANAGH cited
Cavanaugh in his concurrence in support of his belief that the police conduct in Wright
violated defendant’s right to counsel under Article 1, § 20 and the due process provision
now contained in Article 1, § 17, Wright, 441 Mich at 156-157 (opinion by CAVANAGH,
J.); Justice BRICKLEY cited Cavanaugh in his concurrence for the proposition that
incommunicado interrogation affects the voluntariness of a Miranda waiver, id. at 168-
169 (opinion by BRICKLEY, J.); and Justice RILEY cited Cavanaugh in her dissent to rebut
the argument that Michigan’s Constitution requires officers to inform a defendant of an
attorney’s presence for that defendant’s waiver to be made voluntarily and knowingly, id.
at 178-180 (opinion by RILEY, J.). Thus, this Court did not rely on Cavanaugh for the
proposition that the compulsory self-incrimination provision contained in Article 1, § 17
provides protections that extend beyond those afforded by the Fifth Amendment.
35
afforded under the Fifth Amendment. To the contrary, on at least two occasions, this
Court had discussed the meaning of Michigan’s Self-Incrimination Clause in comparison
to the Fifth Amendment and indicated that Michigan’s Self-Incrimination Clause is
identical to its federal counterpart. In In re Moser, 138 Mich 302, 305; 101 NW 588(1904), we noted that “[u]nder the Constitutions of Michigan and of the United States, no
witness can be compelled to give testimony which might tend to criminate himself or
expose him to a criminal prosecution. The provision in each Constitution is the same.”
Eighty years later, in Paramount Pictures Corp v Miskinis, 418 Mich 708, 726; 344
NW2d 788 (1984), we cited Moser and stated that “[h]aving examined prior decisions of
this Court, we find nothing which requires an interpretation of our constitutional privilege
against self-incrimination different from that of the United States Constitution.” Moser
and Paramount are instructive in that they provide insight concerning the legal
environment at the time Bender was decided. Until that point, our interpretations of
Article 1, § 17 provided no indication that this Court was prepared to extend the
protections of Article 1, § 17 to exceed those of the Fifth Amendment.28
Concerning the second matter of exploration, while Bender implicates the
“knowing” prong of a Miranda waiver, this Court’s precedents indicate that Article 1,
28
As we have indicated, we do not understand the assertions in Moser and Paramount as
communicating that this Court, in carrying out its obligation to interpret Article 1, § 17,
will forever adhere to all future interpretations of the Fifth Amendment by the United
States Supreme Court, but merely that, in our judgment, the framers of these
constitutional provisions possessed similar intentions with regard to their purposes, and
possibly also that until that time, judicial understandings of Article 1, § 17 and the Fifth
Amendment were in general accord.
36
§ 17 pertains solely to the voluntariness of a confession. “Under Michigan law, initially
the admissibility of confessions was governed solely by common law, which adhered to
the rule that involuntary confessions were inadmissible.” People v Conte, 421 Mich 704,
721; 365 NW2d 648 (1984) (citations omitted). Subsequently, this Court recognized a
constitutional basis for this rule, acknowledging that both the Due Process Clause,
Cavanaugh, 246 Mich at 686, and the right against self-incrimination, People v Louzon,
338 Mich 146; 61 NW2d 52 (1953), provide alternate bases for holding involuntary
confessions inadmissible. Before Miranda, few cases analyzed the admissibility of a
confession in light of the Self-Incrimination Clause, but this Court did so in People v
Louzon:
We recognize the rule that confessions are inadmissible when
secured by inflicting physical force or its equivalent by means of harsh or
cruel treatment or false promises. The confession must be voluntary, but
this does not mean that it must be volunteered. No one may be forced to be
a witness against himself. [Louzon, 338 Mich 153-154 (emphasis added).]
Thus, this Court’s use of the Self-Incrimination Clause to analyze the admissibility of a
confession focused entirely on the voluntariness of the confession, referring to the type of
force or coercion that is contemplated in part by the text of Article 1, § 17. Sometime
after Louzon, Miranda transformed the inquiry pertaining to the admissibility of
confessions, introducing the concept of a “voluntary, knowing, and intelligent” waiver of
a suspect’s Miranda rights. Before Miranda under Michigan law, voluntariness
constituted the sole criteria for a confession to be admissible, under either the Due
Process Clause, or Michigan’s Self-Incrimination Clause, providing no support for
37
Bender’s proposition that Article 1, § 17 pertains in any way to whether a Miranda
waiver is made “knowingly.”
In his dissent, Justice CAVANAGH disagrees with this conclusion, and instead
asserts that Cavanaugh foreshadowed Miranda’s “knowing and intelligent” requirement
by holding that defendant’s confession was obtained in violation of what is now Article
1, § 17, due to the “incommunicable” nature of the defendant’s interrogation. According
to the dissent, “incommunicado interrogation was at the center of the United States
Supreme Court’s explanation of the ‘knowing and intelligent’ requirement in Miranda,”
and “[b]ecause Cavanaugh’s explanation of the impropriety of the incommunicado
interrogation methods used to extract the defendant’s confession is strikingly similar to
the impermissible interrogation methods that Miranda discussed, Cavanaugh is . . . more
properly classified as consistent with Miranda’s ‘knowing and intelligent’ standard.”
Post at 8.
However, as previously noted, Cavanaugh explicitly pertained only to the
voluntariness of a confession, and the “incommunicable” nature of defendant’s
interrogation was only one factor among many that persuaded this Court to remand for a
determination whether defendant’s confession was voluntary.29 Although Cavanaugh in
29
In his dissent, Justice CAVANAGH asserts that our “hyper-textualist” definition of
“compulsion” is inconsistent with Cavanaugh’s understanding of the term, as Cavanaugh
recognized that “incommunicable” interrogation may render a confession involuntary,
and such “incommunicable” interrogation is not the type of “coercion, violence, force, or
pressure” contemplated by our definition. However, Cavanaugh did not hold that a
confession made in an “incommunicable” environment is involuntary, which is what the
dissent would seem to suggest. Cavanaugh instead acknowledged only that the
incommunicable nature of a confession might be one factor, combined with a host of
others-- including sleep deprivation, duress, and “brow-beating,” all factors that were
38
no way transformed this Court’s traditional voluntariness analysis, even assuming
arguendo that Cavanaugh recognized that more subtle forms of coercion might render a
confession involuntary, there is simply no indication that Cavanaugh contemplated the
“knowing and intelligent” requirement set forth almost four decades later in Miranda, as
Cavanaugh nowhere hinted that a defendant must have some idea of his or her “rights”
and the consequences of waiving those rights in order for his or her confession to be
admissible. As Miranda had not yet introduced the concept of a waiver made
“knowingly and intelligently,” it is highly unlikely that Cavanaugh contemplated such a
requirement, or that the ratifiers of the 1963 Constitution perceived Cavanaugh as setting
forth such a requirement, particularly in view of the fact that Cavanaugh performed the
traditional totality of the circumstances voluntary analysis that was routinely undertaken
in determining the admissibility of a confession at that time.30 As even Justice
CAVANAGH’s dissent acknowledges, “when interpreting the Michigan Constitution, we
must recognize the law as it existed in Michigan at the time the relevant constitutional
provision was adopted, and ‘it must be presumed that a constitutional provision has been
traditionally considered in a voluntary analysis-- that might potentially render a
confession involuntary. This Court should not isolate a single factor from Cavanaugh in
order to establish the meaning of “compulsion” or “voluntariness” in Michigan, in
disregard of what Article 1, § 17, and the body of caselaw both preceding and succeeding
Cavanaugh, would otherwise suggest.
30
Notably, even Justice BRICKLEY, writing for the majority in People v Hill, 429 Mich
382, 392-393; 415 NW2d 193 (1987), acknowledged that “[a]t the time of the drafting of
our 1963 Constitution (pre-Miranda), the self-incrimination provision of the Fifth
Amendment was only implicated when an extrajudicial statement was found to have been
elicited involuntarily.”
39
framed and adopted mindful of prior and existing law and with reference to them.’
People v Kirby, 440 Mich 485, 492; 487 NW2d 404 (1992).” Post at 3 (emphasis added).
The trajectory of our constitutional development under our equivalent of the Fifth
Amendment, as well as this Court’s consistent emphasis on the voluntariness of a
confession, including in Cavanaugh, indicated no anticipation of Miranda, a notion as to
which defense counsel himself agreed at oral argument.31 Furthermore, Cavanaugh was
decided under the Due Process Clause, and not the Self-Incrimination Clause, further
suggesting that the ratifiers of the 1963 Constitution would not have perceived
Cavanaugh as establishing that Michigan’s provision against compulsory self-
incrimination provided any greater protections than those afforded by the Fifth
Amendment. Accordingly, neither Cavanaugh, nor any other precedent of this Court,
supports the dissent’s assertion that Article 1, § 17 was ratified in contemplation of the
“knowing” requirement later set forth in Miranda.32
31
At oral argument, defense counsel acknowledged that Cavanaugh established a right to
counsel as a condition of voluntariness, and that the Court could not have been
contemplating a “knowing and intelligent” standard at that time. Specifically, he stated,
“I don’t think really the courts had entertained as much beyond the voluntariness as came
later on with Miranda—where it talks about voluntary, knowing, and intelligent. So as
the law progressed, I think they weren’t really addressing knowing and intelligent.”
Moreover, defendant has cited no caselaw apart from Cavanaugh that hints at either a
“knowing” requirement, or a different “voluntariness” definition, than the one
contemplated by Article 1, § 17.
32
Going one step further, even assuming arguendo that Cavanaugh in some way did
contemplate Miranda’s “knowing” prong, there is certainly no indication that Cavanaugh
further contemplated the additional and specific protections placed on this prong by
Bender.
40
Moreover, this Court’s precedent provides no support for the proposition that this
Court has placed extra emphasis on the “knowing” prong of a Miranda waiver in the
period since Miranda. Before and after Miranda, “[w]here conditions did not overbear a
defendant’s will, statements have been held admissible.” Wright, 441 Mich at 167, citing
People v Brannan, 406 Mich 104; 276 NW2d 14 (1979); People v Farmer, 380 Mich
198; 156 NW2d 504 (1968); People v Boyce, 314 Mich 608; 23 NW2d 99 (1946). Even
after Miranda and Bender, this Court has referred to Moran for the appropriate “knowing
and intelligent” waiver standard, and stated that “[t]o knowingly waive Miranda rights, a
suspect need not understand the ramifications and consequences of choosing to waive or
exercise the rights that the police have properly explained to him” and “[l]ack of foresight
is insufficient to render an otherwise proper waiver invalid.” People v Cheatham, 453
Mich 1, 28-29; 551 NW2d 355 (1996) (citations omitted). Thus, Bender’s heightened
requirement for a Miranda waiver to be made “knowingly” is inconsistent with this
Court’s previous treatment of the requirement.
This Court’s precedents did not foreshadow, or otherwise provide support, for
Bender. Nor do this Court’s precedents support a finding that Article 1, § 17 requires a
greater showing that a Miranda waiver was made “knowingly” than is required by the
Fifth Amendment, given that this Court’s interpretation of Article 1, § 17 has indicated
that it pertains solely to the voluntariness of a confession itself, not to whether a
confession is made with full knowledge of its consequences.33
33
Justice CAVANAGH’s dissent alleges that the right to counsel articulated in Article 1,
§ 20 of Michigan’s Constitution, which states that, “[i]n every criminal prosecution, the
accused shall have the right . . . to have the assistance of counsel for his or her defense,”
41
4. BENDER V MORAN
This Court’s independent constitutional analysis of Article 1, § 17 leads us to the
conclusion that Moran, not Bender, best analyzes the issue presented in this case. Our
analysis indicates that Article 1, § 17 protects a suspect only from the use of confessions
or incriminating statements obtained by coercion, violence, force, or pressure. However,
Bender’s rule renders confessions and incriminating statements inadmissible that were in
no way influenced by the type of coercive or compelling atmosphere contemplated by the
provision.
Miranda was initially intended by the United States Supreme Court (at least until
its later decision in Dickerson)34 to serve as “one possible formula” by which to dispel
the coercive atmosphere implicit in custodial interrogation; its purpose was to alleviate
lends additional support for Bender. See post at 19-23. However, in Kirby v Illinois, 406
US 682, 688; 92 S Ct 1877; 32 L ED 2d 411 (1972), the United States Supreme Court
held that the right to counsel attaches “only at or after the time that adversary judicial
proceedings have been initiated against him.” Although this Court initially recognized
that there may be instances in which the right to counsel attaches prior to formal charging
in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), and People v Jackson, 391
Mich 323, 338; 217 NW2d 22 (1974), we expressly overruled Anderson and its progeny,
including Jackson, to the extent they “go[] beyond the constitutional text and extend[] the
right to counsel to a time before the initiation of adversarial criminal proceedings” in
People v Hickman, 470 Mich 602, 603-604, 608-609; 684 NW2d 267 (2004), and
reaffirmed that the right to counsel attaches at or after the initiation of adversarial judicial
criminal proceedings. In both Bender, and the instant case, defendants waived their
Miranda rights and made incriminating statements before charges were issued, and
therefore before the initiation of adversarial judicial criminal proceedings, signifying that
the right to counsel had not yet attached. While the dissent articulates its own belief that
Anderson and Jackson were overruled in error, and that Kirby’s restriction is “arbitrary,”
the majority of this Court did not agree and current law clearly indicates that the right to
counsel had not yet attached at the time of defendant Bender and defendant Tanner’s
Miranda waivers. Therefore, Article 1, § 20 also does not support Bender.
34
See note 5 of this opinion.
42
what it viewed as the increasingly subtle and nuanced forms of coercion that sometimes
typified the custodial interrogation process and undermined the genuine voluntariness of
statements produced by this process. In fact, the United States Supreme Court has
explained that “Miranda protects defendants against government coercion leading them
to surrender rights protected by the Fifth Amendment; it goes no further than that.”
Colorado v Connelly, 479 US 157, 170; 107 S Ct 515; 93 L Ed 2d 473 (1986). However,
the situation in Bender falls considerably outside the scope of the custodial interrogation
process that defined the constitutional rationale for Miranda. That is, Bender’s rule
renders inadmissible even statements and confessions made following an indisputably
voluntary and informed Miranda waiver absent even the slightest hint of the subtle or
nuanced forms of coercion that served as the justification for Miranda. Miranda’s
treatment of such forms of coercion at least sought to remain faithful to the Fifth
Amendment’s traditional voluntariness standard.35
35
The United States Supreme Court has determined that, despite its initial “prophylactic”
character, Miranda is now a “constitutional rule.” Dickerson, 530 US at 438-440, 444.
However, this does not necessarily mean that Bender’s “prophylactic” rule is also
constitutional in character. Although Miranda affords protections that seem to exceed
the textual boundaries of the Fifth Amendment, the United States Supreme Court has
emphasized that the point of Miranda is to protect against the coercive nature of the
custodial interrogation environment, which clearly does implicate the Fifth Amendment.
However, because Bender is implicated even when a confession is altogether voluntary
and non-coercive, and because Bender pertains to whether the Miranda waiver was
knowing, and not to the voluntariness of the confession, it is hardly self-evident that
Bender is “prophylactic” in the same way in upholding the Constitution as was Miranda.
Because Bender invalidates confessions made absent any evidence of the type of coercive
custodial interrogation environment that motivated Miranda, Bender does not further
Miranda’s purpose of dissipating the impact of this environment, or at the very least does
so in a far more indirect and attenuated manner by, in the words of the Bender dissent,
“creat[ing] prophylactic rules to protect prophylactic rights.” Bender, 452 Mich at 644.
Contrary to Justice CAVANAGH’s dissent, we do not conclude that it is Bender’s
43
Our independent examination of Article 1, § 17 supports Moran’s conclusion that
“full comprehension of [the Miranda rights] are sufficient to dispel whatever coercion is
inherent in the interrogation process,” Moran, 464 US at 427, because the warnings
provide a suspect with the necessary information both to apprehend these rights and to
make an intelligent and knowing waiver of the rights if he chooses. The waiver of rights
cannot logically be affected by events that are unknown and unperceived, such as the fact
that an attorney is somewhere present to offer assistance. As explained by one scholar:
If there is any police misconduct, the suspect is unaware of such
events because it is directed toward the attorney. Facts and events
unknown to the suspect cannot have a coercive effect on the suspect.
Therefore, the attorney’s efforts and/or presence is irrelevant to the
suspect’s ability to make a voluntary, knowing, and intelligent waiver of his
Miranda rights. Moreover, as the suspect is still read his Miranda rights,
such events do not operate to deprive the suspect of the knowledge of his
rights.
To argue or conclude that a defendant, who by the good fortune of a
family member hiring an attorney, must be told of the attorney’s attempts to
make contact in order to make a knowing and intelligent waiver of Miranda
rights is illogical and nonsensical. In fact, for the majority’s reasoning to
make sense, the majority would have to conclude that persons who are
capable of retaining an attorney, or have family or friends who are capable
of hiring a retained attorney, are not capable of making a knowing and
intelligent waiver of Miranda rights even when the attorney is not present.
As is evident by the admissibility of a suspect’s Miranda waiver in the
ordinary custodial interrogation situation, the majority would not so
conclude. [Carroll, A Look at People v Bender: What Happens when the
Michigan Supreme Court Oversteps Its Power to Achieve A Results-
Oriented Decision, 74 U Det Mercy L Rev 211, 236-237 (1997) (citations
omitted).]
“prophylactic” character that “deprives the [Bender] rule of constitutional status,” post at
14, but rather the nature of the rule itself.
44
We therefore agree with Moran that an outside and unperceived development, such as an
attorney’s presence and initiation of contact with police, “can have no bearing on [a
suspect’s] capacity to comprehend and knowingly relinquish a constitutional right.”
Moran, 475 US at 422.36 Instead, as noted by the United States Supreme Court in
Colorado v Spring, 479 US 564, 577; 107 S Ct 851; 93 L Ed 2d 954 (1987), “the
additional information could affect only the wisdom of a Miranda waiver, not its
essentially voluntary and knowing nature.” It might not be in a suspect’s best interest to
make a statement, but this Court need not concern itself with the wisdom of a suspect’s
confession. To the contrary, voluntary but “foolish” confessions should be welcomed, as
a suspect’s perhaps unwise but purely voluntary urge to tell the truth is vital in assisting
the fact-finder in ultimately ascertaining the truth of what occurred.37
36
The fact that counsel in this case was appointed, whereas counsel in Bender was
retained, makes no difference to our analysis, or to Bender itself as far as we can see. In
neither instance can an attorney’s unsuccessful efforts to contact a defendant affect the
defendant’s ability to apprehend and voluntarily waive his Miranda rights.
37
This case illustrates the problems with Bender. Defense counsel concedes that
defendant’s waiver was made voluntarily, and there are no allegations that defendant did
not understand the Miranda rights that he waived. Because defendant did not invoke his
right to counsel after reinitiating discussion with the police and being advised of his
Miranda rights a second time, and because the adversarial proceedings had not yet begun,
the prosecutor was not required to contact the court, and the court was not required to
appoint an attorney for defendant. Had the prosecutor and court not been proactive in
effecting the appointment of an attorney, Bender never would have been implicated,
because there would have been no attorney of whose presence defendant needed to be
informed. Instead, the prosecutor, on behalf of the people, was effectively sanctioned by
the suppression of defendant’s voluntary statements for having taken the precaution of
seeking out counsel in the event that defendant requested counsel before or during his
interrogation. Consequently, Bender has the effect of discouraging the type of initiative
shown by the prosecutor, because police officers and prosecutors will almost certainly be
45
In sum, independent examination of Article 1, § 17 persuades us that the United
States Supreme Court correctly interpreted this issue in Moran. This examination further
supports Moran’s conclusions that “[e]vents occurring outside of the presence of the
suspect and entirely unknown to him surely can have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right,” that the “ ‘deliberate or
reckless’ withholding of information . . . is only relevant to the constitutional validity of a
waiver if it deprives a defendant of knowledge essential to his ability to understand the
nature of his rights and the consequences of abandoning them,” and that the Miranda
warnings alone “are sufficient to dispel whatever coercion is inherent in the interrogation
process.” Moran, 475 US at 422-424, 427. Because our constitutional analysis
demonstrates that Article 1, § 17 does not confer the protections set forth in Bender, but
instead supports Moran’s analysis and conclusion, we conclude that Bender was wrongly
decided. We conclude, as did the United States Supreme Court in Moran, that the failure
of police to inform a suspect of an attorney’s efforts to contact him does not invalidate an
otherwise “voluntary, knowing, and intelligent” Miranda waiver.
C. STARE DECISIS
When this Court determines that a case has been wrongly decided, as we do here
with regard to Bender, it must next determine whether it should overrule that precedent, a
decision that should never be undertaken lightly. The application of stare decisis is
“generally ‘the preferred course, because it promotes the evenhanded, predictable, and
more reluctant to facilitate counsel before one is legally required if the consequence is the
suppression of evidence.
46
consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process.’ ” Robinson v
Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v United States, 524
US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). However, “stare decisis is a
‘principle of policy’ rather than ‘an inexorable command,’ and . . . the Court is not
constrained to follow precedent when governing decisions are unworkable or are badly
reasoned.” Robinson, 462 Mich at 464 (citations omitted). This Court has discussed the
proper circumstances under which it will overrule prior case law:
This Court has stated on many occasions that “[u]nder the doctrine
of stare decisis, principles of law deliberately examined and decided by a
court of competent jurisdiction should not be lightly departed.” . . . [.]
“Before this court overrules a decision deliberately made, it should be
convinced not merely that the case was wrongly decided, but also that less
injury will result from overruling than from following it.” When it
becomes apparent that the reasoning of an opinion is erroneous, and that
less mischief will result from overruling the case rather than following it, it
becomes the duty of the court to correct it. [People v Graves, 458 Mich
476, 480-481; 581 NW2d 229 (1998) (citations omitted) (alteration in
original).]
When performing a stare decisis analysis, this Court should review inter alia “whether
the decision at issue defies ‘practical workability,’ whether reliance interests would work
an undue hardship, and whether changes in the law or facts no longer justify the
questioned decision.” Robinson, 462 Mich at 464 (citation omitted). As for the reliance
interest, “the Court must ask whether the previous decision has become so embedded, so
accepted, so fundamental to everyone’s expectations that to change it would produce not
just readjustments, but practical real-world dislocations.” Id. at 466.
47
When questions before this Court implicate the Constitution, this Court arguably
has an even greater obligation to overrule erroneous precedent. “[A] judicial tribunal is
most strongly justified in reversal of its precedent when adherence to such precedent
would perpetuate a plainly incorrect interpretation of the language of a constitutional
provision or statute.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 181; 615 NW2d
702 (2000), citing Robinson, 462 Mich at 463-468. This is because “the policy of stare
decisis ‘is at its weakest when we interpret the Constitution because our interpretation
can be altered only by constitutional amendment or by overruling our prior decisions.’ ”
Kyser v Kasson Twp, 486 Mich 514, 534, n 15; 786 NW2d 543 (2010), quoting Agostini v
Felton, 521 US 203, 235; 117 S Ct 1997; 138 L Ed 2d 391 (1997). Thus, it is “our duty
to reexamine a precedent where its reasoning or understanding of the Constitution is
fairly called into question.” Robinson, 462 Mich at 464, quoting Mitchell v W T Grant
Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d 406 (1974) (Powell, J., concurring).
Although Bender disclaimed reliance on Michigan’s Constitution, it nonetheless vaguely
referred to its provisions in enacting its “prophylactic” rule, suggesting that this Court has
a duty to review this decision under less deferential standards of stare decisis in light of
our role as the final judicial arbiter of this Constitution.38
38
Justice CAVANAGH’s dissent emphasizes that a stare decisis analysis should begin with
the presumption that upholding precedent is the preferred course of action and that “when
our caselaw concludes that the Michigan Constitution provides greater protection to our
citizens than that provided by the federal Constitution, . . . ‘this Court should be required
to show a compelling reason to depart from [that] past precedent.’ ” Post at 24 (alteration
in original) (citation omitted). We agree that precedent should not be lightly overruled,
and that a presumption should generally obtain in favor of upholding precedent, although
we do not understand why particular precedents that have interpreted our Constitution in
48
We conclude that overruling Bender would not produce “practical real-world
dislocations,” primarily because Bender obviously cannot be said to have caused suspects
to “alter their conduct in any way.” See People v Petit, 466 Mich 624, 635; 648 NW2d
193 (2002). As Moran noted, “[e]vents occurring outside of the presence of the suspect
and entirely unknown to him surely can have no bearing on the capacity to comprehend
and knowingly relinquish a constitutional right.” Moran, 475 US at 422. It seems highly
unlikely that a suspect being interrogated, after a day earlier having expressly refused to
waive his right to counsel and then reconsidering that decision by affirmatively seeking
to speak with police and then expressly waiving his right to counsel, would thereafter rely
on Bender in determining that he need not ask for an attorney because the officers have a
legal duty to inform him that an attorney has initiated contact with them. Although a
suspect might later come to have second thoughts and prefer that he had not waived his
right to counsel, “[s]uch after-the-fact awareness does not rise to the level of a reliance
interest because to have reliance the knowledge must be of the sort that causes a person
or entity to attempt to conform his conduct to a certain norm before the triggering event.”
Robinson, 462 Mich at 466-467. Consequently, Bender has not become so “fundamental
to everyone’s expectations” that to overrule it would result in “real-world dislocations.”
Id. at 466. Further, that Bender can fairly be considered to be “workable,” in the sense
that the police may clearly understand their legal obligations to a defendant and his
a manner different than similar language in the federal constitution should give rise to
any special rule of stare decisis.
49
attorney, does not render “practically unworkable” a regime in which a defendant’s rights
are just as clearly understood.
Contrary to Bender, we do not believe that increased “mischief” will result from
this Court’s failure to maintain the rule expounded in that case as the constitutional law
of this state. As already noted, we agree with Moran that the constitutional
“voluntariness” of a confession or incriminating statement is not implicated by the failure
of police to inform the defendant of the presence of an attorney before proceeding with a
custodial interrogation after Miranda warnings have been given and Miranda rights
waived. Whether a defendant does or does not possess knowledge of an attorney’s
outside presence cannot affect whether that defendant understands the rights that he or
she is waiving, and neither the United States Supreme Court nor this Court has ever
accepted the proposition that an attorney must be present in order that a Miranda waiver
be characterized as “voluntary, knowing, and intelligent.”
Moran accurately highlighted the competing policies informing both Miranda and
its progeny, including Moran itself:
Custodial interrogations implicate two competing concerns. On the
one hand, “the need for police questioning as a tool for effective
enforcement of criminal laws” cannot be doubted. Admissions of guilt are
more than merely “desirable,” they are essential to society’s compelling
interest in finding, convicting, and punishing those who violate the law. On
the other hand, the Court has recognized that the interrogation process is
“inherently coercive” and that, as a consequence, there exists a substantial
risk that the police will inadvertently traverse the fine line between
legitimate efforts to elicit admissions and constitutionally impermissible
compulsion. Miranda attempted to reconcile these opposing concerns by
giving the defendant the power to exert some control over the course of the
interrogation. . . . Police questioning, often an essential part of the
investigatory process, could continue in its traditional form, the Court held,
but only if the suspect clearly understood that, at any time, he could bring
50
the proceeding to a halt or, short of that, call in an attorney to give advice
and monitor the conduct of his interrogators.
The position urged by [defendant] would upset this carefully drawn
approach in a manner that is both unnecessary for the protection of the Fifth
Amendment privilege and injurious to legitimate law enforcement.
Because, as Miranda holds, full comprehension of the rights to remain
silent and request an attorney are sufficient to dispel whatever coercion is
inherent in the interrogation process, a rule requiring the police to inform
the suspect of an attorney’s efforts to contact him would contribute to the
protection of the Fifth Amendment privilege only incidentally, if at all.
This minimal benefit, however, would come at a substantial cost to
society’s legitimate and substantial interest in securing admissions of guilt.
[Moran, 475 US at 426-427 (citations omitted).]
The Moran Court’s concern that further protections against self-incrimination, such as
those set forth in Bender, would impinge on the effectiveness of law enforcement are
entirely valid, in our judgment. Neither the Fifth Amendment nor Article 1, § 17 is
hostile to custodial interrogations-- only to those in which there is some coercive
environment. Similarly, neither the Fifth Amendment nor Article 1, § 17 is hostile to
confessions and self-incrimination-- only to those which are “compelled.” Indeed,
confessions and incriminating statements constitute perhaps the most compelling and
important evidence available to fact-finders in the justice system’s search for truth.
Suppression of such evidence as the result of a Bender violation deprives these fact-
finders of evidence allowing them to distinguish truth from falsity and innocence from
guilt, while avoiding the conviction of innocent persons and the exoneration of guilty
persons, all in pursuit of a principle that has never since the founding of our republic or
state been viewed as a constitutional violation.39
39
In his dissent, Justice CAVANAGH disagrees with the conclusion that Bender
“impinge[s] on the effectiveness of law enforcement,” instead noting that “it does not
appear that Michigan’s law enforcement has suffered from a serious inability to
51
Although overruling Bender will undeniably result in some unknown number of
confessions and incriminating statements that might otherwise not have been provided,
such evidence will have been voluntarily offered and have been preceded by “voluntary,
knowing, and intelligent” waivers of Miranda rights. This evidence is to be welcomed,
not repudiated, by any rational and effective criminal justice system. It is hard to
comprehend a societal interest that is furthered by protecting persons who have engaged
in serious criminal activities from the consequences of their own voluntary and intelligent
decisions. While Justice CAVANAGH’s dissent claims that “this statement entirely ignores
the overriding principle of our criminal justice system: that a suspect is presumed
innocent until proven guilty beyond a reasonable doubt,” post at 27, we are inclined
instead to concur with Justice BOYLE who observed in her Bender dissent that, “[i]f
properly administered and validly waived, the Miranda warnings ensure protection of a
defendant’s right against compulsory self-incrimination, while at the same time allowing
the police to fulfill their duty in a constitutionally permissible manner.” Bender, 452
Mich at 626 (BOYLE, J., dissenting).
Because we believe that less, not more, “mischief” will likely result from
overruling the case, we are further persuaded of the need to overrule Bender. See
effectively enforce the law in the 18 years since Bender was decided.” Post at 28.
However, as the prosecutor explained at oral argument, Bender violations frequently
arise, and many of the negative effects of Bender are not obviously seen, but nonetheless
exist, because “[b]y following Bender, confessions are never made so there’s never the
motion to suppress . . . or the case is never solved so charges are never filed . . . . [And]
plea bargains are entered into that otherwise should not be, but have to be because of a
Bender issue.”
52
Graves, 458 Mich at 480-481, citing McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98
NW 1006 (1904) (stating that in reversing precedent, the Court “should be convinced not
merely that the case was wrongly decided, but also that less injury will result from
overruling than from following it”).
V. CONCLUSION
An examination of Michigan’s Constitution and a review of this Court’s
precedents compel the conclusion that Bender was wrongly decided and should now be
overruled. In accordance with Moran, we hold that “[o]nce it is determined that a
suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he
could stand mute and request a lawyer, and that he was aware of the State’s intention to
use his statements to secure a conviction, the analysis is complete and the waiver is valid
as a matter of law.” Moran 475 US at 422-423. Although this Court need not interpret a
provision of our Constitution in the same manner as a similar or identical federal
constitutional provision, we are persuaded in the present instance, on the basis of our
examination of Article 1, § 17, that the United States Supreme Court’s interpretation of
the Self-Incrimination Clause of the Fifth Amendment in Moran constitutes the proper
interpretation of Article I, § 17 as well. We reverse the trial court’s suppression of
incriminating statements made by defendant during custodial interrogation and remand to
that court for further proceedings consistent with this opinion.
Stephen J. Markman
Robert P. Young, Jr.
Mary Beth Kelly
Brian K. Zahra
David F. Viviano
53
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 146211
GEORGE ROBERT TANNER,
Defendant-Appellee.
CAVANAGH, J. (dissenting).
In People v Bender, 452 Mich 594, 620; 551 NW2d 71 (1996) (opinion by
CAVANAGH, J.); id. at 623 (opinion by BRICKLEY, C.J.), we held that police cannot
conceal from suspects that counsel has been made available to them.1 Although that
decision has stood for nearly 20 years, today the majority casts Bender aside as “wrongly
decided.” Because I continue to believe that Bender correctly announced a rule firmly
rooted in the Michigan Constitution, I dissent.
I. INTRODUCTION
The majority explains its decision by first stating that, in Moran v Burbine, 475
US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), the United States Supreme Court reached
the opposite conclusion. However, as the majority acknowledges, the divergent results in
1
This Court also reached the same conclusion in an earlier plurality opinion. See People
v Wright, 441 Mich 140; 490 NW2d 351 (1992).
Moran and Bender cannot support the majority’s conclusion that Bender was wrongly
decided. Indeed, according to the United States Supreme Court, “a State is free as a
matter of its own law to impose greater restrictions on police activity than those this
Court holds to be necessary upon federal constitutional standards.” Oregon v Hass, 420
US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975), citing Cooper v California, 386 US
58, 62; 87 S Ct 788; 17 L Ed 2d 730 (1967), and Sibron v New York, 392 US 40, 60-61;
88 S Ct 1889; 20 L Ed 2d 917 (1968). Moreover, Moran extended this broad premise to
the exact issue at hand, stating, “[n]othing we say today disables the States from adopting
different requirements for the conduct of its employees and officials as a matter of state
law.” Moran, 475 US at 428. Finally, we have consistently concluded that we are not
bound in our understanding of the Michigan Constitution by any particular interpretation
of the United States Constitution. See, e.g., Harvey v Michigan, 469 Mich 1, 6 n 3; 664
NW2d 767 (2003).
Given that we are clearly free to interpret our Constitution more broadly than the
United States Supreme Court has interpreted the federal Constitution, and the United
States Supreme Court has permitted the creation of rules like the one from Bender, one
must ask what is so wrong about Bender that it must be abandoned after nearly two
decades of problem-free application in our state? According to the majority, Michigan’s
Constitution does not support Bender’s rule. I disagree.
2
Although the language of Const 1963, art 1, § 17,2 is nearly identical to the
language in the Fifth Amendment of the United States Constitution,3 that does not
necessarily indicate that we must interpret our Constitution in a manner consistent with
the United States Supreme Court’s interpretation of the federal Constitution. Rather,
when interpreting the Michigan Constitution, we must recognize the law as it existed in
Michigan at the time the relevant constitutional provision was adopted, and “it must be
presumed that a constitutional provision has been framed and adopted mindful of prior
and existing law and with reference to them.” People v Kirby, 440 Mich 485, 492; 487
NW2d 404 (1992). Accordingly, I will begin with a review of an opinion decided long
before the ratifiers adopted the 1963 Constitution and cited for support in People v
Wright, 441 Mich 140; 490 NW2d 351 (1992), and Bender: People v Cavanaugh, 246
Mich 680; 225 NW 501 (1929).
II. PEOPLE V CAVANAUGH: THE ORIGIN OF BENDER’S FOUNDATION IN THE
MICHIGAN CONSTITUTION
In support of its conclusion that Bender is not rooted in the Michigan Constitution,
the majority toils away for page after page of analysis arguing that the Michigan
Constitution only protects a suspect from involuntary confessions. Moreover, the
majority limits the scope of “involuntary confessions” to only those confessions that
satisfy the dictionary definition of “compelled.”
2
Const 1963, art 1, § 17 states, in relevant part, “[n]o person shall be compelled in any
criminal case to be a witness against himself . . . .”
3
US Const, Am V, states in part that “[n]o person shall . . . be compelled in any criminal
case to be a witness against himself . . . .”
3
The result is that in the majority’s view, a confession is inadmissible under art 1,
§ 17 only if the confession is obtained through “the use of coercion, violence, force, or
pressure . . . .” Ante at 22. In fact, the majority concludes that our caselaw “focused
entirely on the voluntariness of the confession,” which only excludes confessions
“ ‘secured by inflicting physical force or its equivalent by means of harsh or cruel
treatment . . . .’ ” Ante at 37, quoting People v Louzon, 338 Mich 146, 153-154; 61
NW2d 52 (1953) (emphasis added).4
The problem with the majority’s view is twofold: first it is rooted in a hyper-
textualist analysis of the word “compelled” in art 1, § 17, an approach rejected in this
area of law by the United States Supreme Court in Miranda v Arizona, 384 US 436; 86 S
Ct 1602; 16 L Ed 2d 694 (1966), and throughout Miranda’s progeny. See, e.g., Edwards
v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981) (explaining the
protections applicable when an accused invokes the right to have counsel present during
custodial interrogation). Second, the majority singularly focuses on pre-Miranda
caselaw. Not surprisingly, that pre-Miranda caselaw does not use the terminology
adopted in Miranda to explain the “knowing and intelligent” requirements. Thus, by
4
I recognize that the majority acknowledges that “Miranda has established an irreducible
minimum standard for purposes of all custodial interrogations in Michigan,” ante at 23
n 19, and thus agrees that a confession may also be inadmissible if a suspect’s waiver of
rights is not made voluntarily, knowingly, and intelligently. However, by arguing that
only “involuntary confessions” are prohibited under the Michigan Constitution and that
the other limitations are only the product of Miranda’s interpretation of the federal
Constitution, the majority erroneously concludes that our state courts never adopted a
broader interpretation of the Michigan Constitution pre-Miranda, as will be explained
later in this opinion.
4
focusing exclusively on the fact that pre-Miranda caselaw used the “voluntary
confession” terminology, the majority determines that the pre-Miranda caselaw only
prohibited the use of confessions obtained by “inflicting physical force” or “cruel
treatment.” However, simply because Michigan’s pre-Miranda caselaw did not use the
terminology adopted in Miranda does not necessarily mean that our caselaw did not
adopt an understanding of art 1, § 17 that is broader than the hyper-textualist meaning
espoused by the majority. Rather, we must consider the actual interrogation
circumstances in those pre-Miranda opinions to determine whether we have historically
interpreted our state Constitution to provide broader protection against self-incrimination
than is provided in the federal Constitution.
In 1929, long before adoption of the 1963 Michigan Constitution, we considered a
case in which the police denied counsel’s request to speak with his client, whom the
police were interrogating. Cavanaugh, 246 Mich at 687. In Cavanaugh, we found the
police conduct impermissible, stating:
“[H]olding an accused incommunicable, is condemned by every principle
of fairness, . . . is forbidden by the constitutional guaranty of due process of
law, and inhibited by the right of an accused to have the assistance of
counsel. . . . Holding an accused incommunicable to parents and counsel is
a subtle and insidious method of intimidating and cowing . . . .” [Id. at 686
(emphasis added).]
Cavanaugh also provided, “In this State . . . police [may not], having custody of one
accused of crime, deny an attorney, employed by or in behalf of a prisoner, the right to
see and advise the accused.” Id. at 688 (emphasis added).
5
As I explained in Wright, “it is clear that Cavanaugh, in view of its reference to
the law ‘[i]n this State,’ . . . was not referring to any rights under the federal constitution;
rather, it was referring to the rights existing under our state constitution.” Wright, 441
Mich at 158 (opinion by CAVANAGH, C.J.) (emphasis added). Indeed, this Court later
concluded that Cavanaugh relied on “the Michigan constitutional guarantee of due
process,” which was then contained in Const 1908, art 2, § 16, and is now found in the
constitutional provision at issue—Const 1963, art 1, § 17. People v Conte, 421 Mich
704, 722; 365 NW2d 648 (1984).
After understanding that Cavanaugh interpreted the Michigan Constitution, the
next question is whether Cavanaugh interpreted the state constitutional language more
broadly than the language of its federal counterpart. As previously noted, Cavanaugh
concluded that “holding an accused incommunicable . . . is forbidden by the
constitutional guaranty of due process of law, and inhibited by the right of an accused to
have the assistance of counsel.” Cavanaugh, 246 Mich at 686 (emphasis added).
Holding a suspect “incommunicable” is substantially different from “inflicting physical
force” or “cruel treatment,” which, according to the majority, is the only type of
“compulsion” that the Michigan Constitution prohibited pre-Miranda. Nevertheless,
Cavanaugh concluded that the defendant’s confession was obtained in violation of what
is now art 1, § 17 of the Michigan Constitution. Thus, the majority’s claim—that we
have not previously interpreted Michigan’s Constitution to provide protection against
self-incrimination except with respect to confessions obtained by “ ‘inflicting physical
6
force’ ” or “ ‘by means of harsh or cruel treatment,’ ” ante at 37 (citation omitted)—is
inconsistent with Cavanaugh.
In order to sidestep this inconsistency, the majority argues that Cavanaugh is
distinguishable from Bender because Cavanaugh concluded that the defendant’s
confession was not voluntary, whereas Bender concluded that the defendant’s waiver of
rights was not made knowingly. The majority is correct that Cavanaugh did not mention
whether the defendant’s waiver of rights was made “knowingly” under the Michigan
Constitution and instead referred to the “voluntariness” of the confession. However, as
previously discussed, that is not surprising, given that Cavanaugh was decided 37 years
before Miranda established the “knowing and intelligent” terminology referred to in
Bender. Yet, concluding that Cavanaugh did not create the foundation for Bender on
these grounds is, in my opinion, an oversimplification of Cavanaugh.
In my view, Cavanaugh foreshadowed Miranda’s understanding of the nature of
the right protected by the constitutional guarantee that a person will not be “compelled”
to be a witness against himself. Because Cavanaugh referred to the “voluntariness” of
the defendant’s confession, the majority insists that Cavanaugh is nothing more than a
typical “voluntariness” case. As a result, the majority assumes that Cavanaugh
concluded that the confession was the product of impermissible “compulsion,” which the
majority defines as “the use of coercion, violence, force, or pressure . . . .” Ante at 22.
However, by focusing on only the terms used in Cavanaugh, the majority overlooks the
context in which the terms were used as well as the fact that Cavanaugh never mentioned
the types of “compulsion” the majority discusses. In fact, a police officer whose
7
testimony described the interrogation in Cavanaugh stated that the defendant “was not
threatened in any manner by the officers nor was he offered any hope of reward nor any
promises held to him for the signing of the statement . . . .” Cavanaugh, 246 Mich at
686-687. Rather, Cavanaugh only referred to the impermissibility of “holding an
accused incommunicable.” Id. at 686 (emphasis added). See, also, id. at 688 (noting that
“[t]he defendant was held incommunicable”) (emphasis added).
Critically, incommunicado interrogation was at the center of the United States
Supreme Court’s explanation of the “knowing and intelligent” requirement in Miranda:
“The current practice of incommunicado interrogation is at odds with one of our Nation’s
most cherished principles—that the individual may not be compelled to incriminate
himself.” Miranda, 384 US at 457-458 (emphasis added). Moreover, Miranda expressly
acknowledged that incommunicado interrogation is not like coercion, violence, force, or
pressure that the majority in this case discusses. See id. at 457 (“To be sure,
[incommunicado interrogation] is not physical intimidation . . . .”). Nevertheless,
Miranda concluded that incommunicado interrogation “is equally destructive of human
dignity,” id., and, therefore, violates a suspect’s privilege against self-incrimination.
Because Cavanaugh’s explanation of the impropriety of the incommunicado
interrogation methods used to extract the defendant’s confession is strikingly similar to
the impermissible interrogation methods that Miranda discussed, Cavanaugh is, in my
view, more properly classified as consistent with Miranda’s “knowing and intelligent”
standard. Stated differently, although Cavanaugh did not use the yet-to-be-created
Miranda terminology, Cavanaugh nevertheless is consistent with Miranda’s analysis and
8
conclusion concerning knowing and intelligent waivers because Cavanaugh did not
address coercive police conduct that affected the voluntariness of a suspect’s confession.5
The majority rejects this view and instead concludes that Cavanaugh never “hinted that a
defendant must have some idea of his or her ‘rights’ . . . .” Ante at 39. I disagree
because, in my view, an obvious result of holding a suspect incommunicado is that the
suspect will lack knowledge of his or her rights, a conclusion that is even truer when the
suspect is unaware that counsel, who could educate the suspect on those rights, is actively
seeking to communicate with the suspect. Thus, in my view, Cavanaugh evidences that
this Court did not interpret the Michigan Constitution to prohibit only confessions
obtained by “inflicting physical force” or “cruel treatment.” When viewed in this light,
Cavanaugh supports Bender’s conclusion that denying counsel’s request to communicate
with a suspect amounts to impermissible incommunicado interrogation in violation of
Const 1963, art 1, § 17.6
5
The fact that defense counsel did not adopt this view at oral argument is of no moment:
“this Court is not bound by the [parties’] interpretation of the case and may consider and
analyze the facts and issues independent of such concession.” Camaj v S S Kresge Co,
426 Mich 281, 290 n 6; 393 NW2d 875 (1986), citing Sibron v New York, 392 US 40,
58-59; 88 S Ct 1889; 20 L Ed 2d 917 (1968).
6
The majority cites In re Moser, 138 Mich 302; 101 NW 588 (1904), and Paramount
Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984), in support of its
conclusion that the Michigan Constitution has not been interpreted to provide more
protection regarding self-incrimination than the federal Constitution. However, Moser
pre-dates Cavanaugh. Because Cavanaugh granted the protection under the state
Constitution, and the framers of the 1963 Michigan Constitution are presumed to have
been aware of Cavanaugh, I do not believe that Moser supports the majority’s
conclusion. Regarding Paramount Pictures, that opinion did not cite Cavanaugh and
thus provides no insight regarding Cavanaugh’s impact on our pre-Miranda
9
The majority also attempts to distinguish Cavanaugh from Bender by arguing that
Miranda protects only against police coercion and Bender therefore “falls considerably
outside the scope of the custodial interrogation process which defined the constitutional
rationale for Miranda.” Ante at 43, citing Colorado v Connelly, 479 US 157, 170; 107 S
Ct 515; 93 L Ed 2d 473 (1986). Accordingly, the majority appears to argue that there is
no material difference between the pre-Miranda test to determine whether a suspect’s
confession was voluntary and the post-Miranda test to determine whether a suspect’s
waiver was “knowing and intelligent.” However, that approach ignores that Miranda
requires analysis of two distinct prongs—the voluntariness prong and the knowing and
intelligent prong. Thus, the majority makes the
fallacious assumption of a complete unity between the determinative
factors of the pre-Miranda Fourteenth Amendment due process analysis
(which was concerned solely with coercive police conduct that affected the
voluntariness of a suspect’s confession) and the post-Miranda waiver
analysis (which requires analysis of two distinct prongs, only one of
which—i.e., voluntariness—is logically, or in any other respect, related to
coercive police practices). [People v Cheatham, 453 Mich 1, 52-53; 551
NW2d 355 (1996) (CAVANAGH, J., concurring in part).]
Connelly does not, however, support the majority’s conclusion that Miranda protects
only against police coercion. Rather, Connelly simply held that “coercive police activity
is a necessary predicate to the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth Amendment,” and determined that
“[t]here is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in
the Miranda waiver context than in the Fourteenth Amendment confession context.”
interpretation of the Michigan Constitution.
10
Connelly, 479 US 167, at 169-170 (emphasis added). Thus, although it is unmistakable
that coercive police conduct is as necessary to a finding of involuntariness under
Miranda as it is under the substantive protection of the Fourteenth Amendment Due
Process Clause, “[i]t is only with respect to the completely distinct ‘knowing and
intelligent’ prong of a Miranda waiver analysis . . . that coercive police conduct is not
required, either by logic or by law.” Cheatham, 453 Mich at 54 (CAVANAGH, J.,
concurring in part).
That is not to say that courts should ignore police conduct when applying the
knowing-and-intelligent prong of a Miranda analysis. Police conduct may still be
relevant to the knowing-and-intelligent prong because “any police conduct that could
have an effect on a suspect’s requisite level of comprehension must be factored into the
analysis[,]” which was clear before Connelly. Id. at 55. In fact, Moran, the very opinion
the majority follows today, recognized that “the ‘deliberate or reckless’ withholding of
information is objectionable as a matter of ethics,” but concluded that “such conduct is
only relevant to the constitutional validity of a waiver if it deprives a defendant of
knowledge essential to his ability to understand the nature of his rights and the
consequences of abandoning them.” Moran, 475 US at 423-424 (emphasis added).
Accordingly, because Miranda protects suspects against more than just police coercion,
Bender is not “outside the scope” of Miranda.
The majority also argues that Cavanaugh is irrelevant because, in Cavanaugh, the
police denied the suspect’s request for counsel, whereas Bender addressed denial of
counsel’s request to communicate with a suspect. However, Cavanaugh clearly
encompassed police refusal to honor counsel’s requests to speak to the suspect.
11
Specifically, Cavanaugh quoted police testimony establishing that the police denied a
request by the suspect’s father and a request by the suspect’s counsel to speak to the
suspect. Cavanaugh, 246 Mich at 686-687. Citing those facts, Cavanaugh condemned
the police conduct, stating:
In this State a parent may not be denied the right to see and have
conversation with a child in jail and accused of crime. Neither may police,
having custody of one accused of crime, deny an attorney, employed by or
in behalf of a prisoner, the right to see and advise the accused. [Id. at 688
(emphasis added).]
Thus, Cavanaugh is applicable not only to situations in which the suspect’s request for an
attorney is denied, but to situations in which counsel’s request to speak to a suspect is
denied, as well.
Finally, the majority argues that Cavanaugh cannot support Bender because
Cavanaugh employed a “totality of the circumstances” rule rather than the per se rule
applied in Bender. The fact that Cavanaugh and Bender differed on what test should
result from police interference with counsel’s efforts to speak to a suspect does not lessen
the fact that Cavanaugh and Bender agreed that such police conduct is unconstitutional
under the Michigan Constitution. Indeed, the police also ignored the defendant’s express
request for counsel in Cavanaugh, but Cavanaugh nevertheless applied a totality of the
circumstances rule. As the majority recognizes, were those circumstances to occur today,
the subsequent confession would be per se inadmissible under Miranda, 384 US at 474.
However, Cavanaugh’s conclusion that ignoring the defendant’s request for counsel was
unconstitutional is no less correct today simply because Cavanaugh applied a totality of
12
the circumstances rule rather than the Miranda per se rule. Similarly, Cavanaugh’s
conclusion that ignoring counsel’s request to communicate with the suspect was
unconstitutional is no less correct today simply because Cavanaugh applied a totality of
the circumstances rule rather than the Bender per se rule.
Moreover, as I explained in Bender, “ ‘a purported waiver [of Miranda] can never
satisfy a totality of the circumstances analysis when police do not even inform a suspect
that his attorney seeks to render legal advice.’ ” Bender, 452 Mich at 616 (opinion by
CAVANAGH, J.), quoting Bryan v State, 571 A2d 170, 176 (Del, 1990) (emphasis
omitted). “ ‘When the opportunity to consult counsel is in fact frustrated, there is no
room for speculation what defendant might or might not have chosen to do after he had
that opportunity.’ ” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.), quoting State
v Haynes, 288 Or 59, 75; 602 P2d 272 (1979). In fact, “ ‘police deception of a suspect
through omission of information regarding attorney communications greatly exacerbates
the inherent problems of incommunicado interrogation and requires a clear principle to
safeguard the presumption against the waiver of constitutional rights.’ ” Bender, 452
Mich at 617 n 23 (opinion by CAVANAGH, J.), quoting Moran, 475 US at 452 (Stevens,
J., dissenting). Accordingly, I continue to believe that the nature of “incommunicado
interrogation requires a per se rule that can be implemented with ease and practicality to
protect a suspect’s rights to remain silent and to counsel.” Bender, 452 Mich at 617(opinion by CAVANAGH, J.).
Once it is understood that Cavanaugh prohibited police interference with
counsel’s efforts to communicate with a suspect based on the same state constitutional
13
language that was applied in Bender, the next question is whether Bender merely
continued to apply Cavanaugh’s previously created rule or, as the majority argues,
created a rule that did not exist before Bender. Therefore, I will review Bender and the
plurality opinions from Wright, 441 Mich 140, Bender’s predecessor.
III. PEOPLE V WRIGHT AND PEOPLE V BENDER
As the majority explains, Bender resulted in multiple opinions, and only Chief
Justice BRICKLEY’S opinion garnered four votes. In addition, as the majority states, Chief
Justice BRICKLEY’S opinion labeled the result of its holding a “prophylactic rule.”
Bender, 452 Mich at 621 (opinion by BRICKLEY, C.J.). However, I disagree with the
majority that the arguably “prophylactic” character of the Bender rule deprives the rule of
constitutional status. Rather, considering Chief Justice BRICKLEY’S opinion in its
entirety, it is clear that he viewed Bender’s “prophylactic” rule in the same mold as
Miranda’s “prophylactic” rule. See id. at 620-621 (expressing a preference to “approach
the law enforcement practices that are at the core of this case in the same manner as the
United States Supreme Court approached the constitutional interpretation task in
[Miranda]; namely, by announcing a prophylactic rule”). And, notably, the United States
Supreme Court has since explained that although Miranda is labeled a “prophylactic”
rule, it is nevertheless a constitutional rule. See Dickerson v United States, 530 US 428,
438-440, 444; 120 S Ct 2326; 147 L Ed 2d 405 (2000).
Moreover, Chief Justice BRICKLEY’S Bender opinion indisputably recognized the
constitutional underpinnings of its analysis. For example, Chief Justice BRICKLEY noted
that the case “rather clearly implicates both the right to counsel (Const 1963, art 1, § 20)
14
and the right against self-incrimination (Const 1963, art 1, § 17),” which are “part of the
bedrock of constitutional civil liberties . . . .” Bender, 452 Mich at 620, 621 (opinion by
BRICKLEY, C.J.) (emphasis added). Additionally, Chief Justice BRICKLEY determined
that “it is difficult to accept and constitutionally justify a rule of law that accepts that law
enforcement investigators, as part of a custodial interrogation, can conceal from suspects
that counsel has been made available to them and is at their disposal.” Id. at 621(emphasis added). Thus, Chief Justice BRICKLEY concluded that any other rule would be
“insufficient to guarantee a suspect’s constitutional rights.” Id. at 623 (emphasis added).
We also have the benefit of then Justice BRICKLEY’S further explanation of his
Bender opinion by way of his dissent in People v Sexton, 458 Mich 43; 580 NW2d 404
(1998). In Sexton, a majority of this Court concluded that Bender did not apply
retroactively and implied that Bender lacks a constitutional basis, as the majority
concludes today. However, Justice BRICKLEY explained that Bender’s “very purpose is
to protect a suspect’s right to counsel and the privilege against self-incrimination”;
therefore, “[t]o deny the constitutional import of [Bender] is to ignore the plain language”
of the Bender opinion. Id. at 70 (BRICKLEY, J., dissenting) (emphasis added).
Accordingly, Justice BRICKLEY flatly concluded that “the majority’s conclusion that
Bender does not implicate a defendant’s constitutional rights [is] wrong and without any
viable legal support.” Id. at 72.
Regardless of whether Chief Justice BRICKLEY’S Bender opinion definitively
rooted its analysis in the Michigan Constitution, I nevertheless retain my belief that the
Bender rule is a product of our Constitution, because art 1, § 17 “requires the police to
15
inform the suspect that a retained attorney is immediately available to consult with him,
and failure to so inform him before he confesses per se precludes a knowing and
intelligent waiver of his right to remain silent and to counsel.” Bender, 452 Mich at 597(opinion by CAVANAGH, J.).
As I did in Bender, I continue to recognize that “[u]nder federal law, a waiver is
knowingly and intentionally made where no police coercion was involved and where the
defendant understands that he has the right to remain silent and that the state intends to
use what he says to secure a conviction.” Id. at 612, citing Moran, 475 US at 422-423.
However, it is also my opinion that “in Michigan, more is required before the trial court
may find a knowing and intelligent waiver.” Bender, 452 Mich at 612 (opinion by
CAVANAGH, J.). Specifically, “in order for a defendant to fully comprehend the nature of
the right being abandoned and the consequences of his decision to abandon it, he must
first be informed that counsel, who could explain the consequences of a waiver decision,
has been retained to represent him.” Id. at 612-613. This is true because
“[w]hen that information is withheld, the suspect’s waiver of the right to
counsel and to remain silent is more abstract than real, becoming, in effect,
a waiver of a theoretical right that is uninformed by the material knowledge
that retained counsel, present and available to assist the suspect in the full
exercise of his or her rights, is just outside the door.” [Id. at 612 n 16,
quoting State v Reed, 133 NJ 237, 274; 627 A2d 630 (1993).]
Stated differently, I am
“unwilling . . . to dismiss counsel’s effort to communicate as
constitutionally insignificant to the capacity of the suspect to make a
knowing and intelligent choice whether he or she will invoke the right to
counsel. Miranda warnings refer only to an abstract right to counsel. That
a suspect validly waives the presence of counsel only means that for the
moment the suspect is foregoing the exercise of that conceptual privilege.
16
Faced with a concrete offer of assistance, however, a suspect may well
decide to reclaim his or her continuing right to legal assistance. To pass up
an abstract offer to call some unknown lawyer is very different from
refusing to talk with an identified attorney actually available to provide at
least initial assistance and advice, whatever might be arranged in the long
run. A suspect indifferent to the first offer may well react quite differently
to the second. We cannot therefore conclude that a decision to forego the
abstract offer contained in Miranda embodies an implied rejection of a
specific opportunity to confer with a known lawyer.” [Bender, 452 Mich at
612 n 16 (opinion by CAVANAGH, J.), quoting State v Stoddard, 206 Conn
157, 168; 537 A2d 446 (1988) (quotation marks omitted).]
Finally, in response to today’s majority, I reiterate my response to the Bender
dissent’s assertion that the Michigan Constitution’s privilege against self-incrimination
provides no greater protection than the Fifth Amendment: “when interpreting art 1, § 17,
there is an absence of a direct link to federal interpretation of the Fifth Amendment.
Thus, it does not logically follow that in interpreting art 1, § 17, we must find compelling
reasons to interpret our constitution more liberally than the federal constitution.” Bender,
452 Mich at 613 n 17 (opinion by CAVANAGH, J.). Rather, this Court must conduct a
searching examination to discover what law the people of this state have made. Id.I also note that Justice BRICKLEY’S dissent in Sexton, 458 Mich at 69-70(BRICKLEY, J., dissenting), and my opinion in Bender, 452 Mich at 611-612 (opinion by
CAVANAGH, J.), cited the plurality opinions in Wright. Thus, although no opinion in
Wright garnered majority support, Wright provides further insight into the constitutional
basis for the Bender rule.
In Wright, Justice MALLETT, joined by Justice LEVIN, explained that “[u]nder
Const 1963, art 1, § 17, a criminal suspect is given the right against self-incrimination, a
right similar to that provided in the Fifth Amendment of the United States Constitution.”
17
Wright, 441 Mich at 154 (opinion by MALLETT, J.) (emphasis added). Thus, Justice
MALLETT recognized that the right against self-incrimination under the Michigan
Constitution is not necessarily exactly the same as the “similar” right under the federal
Constitution merely because the language of the two Constitutions is nearly the same.
Rather, the state right may be broader. Indeed, Justice MALLETT concluded just that
when he explained that the defendant’s “confession, made without [knowledge of his
attorney’s efforts to speak to him], violated the rights afforded under the Michigan
Constitution.” Id. at 155 (emphasis added).
I concurred with Justice MALLETT’S conclusion that the privilege against self-
incrimination under the Michigan Constitution is broader than the privilege under the
United States Supreme Court’s interpretation of the Fifth Amendment. Wright, 441 Mich
at 155-156 (opinion by CAVANAGH, C.J.). I provided further support for that conclusion
by noting that, as far back as 1929, this Court had determined that the privilege against
self-incrimination under the state Constitution made it unlawful for police to deny an
attorney access to his client. Id. at 157-158, citing Cavanaugh, 246 Mich 680. Finally,
Justice BRICKLEY also authored a concurring opinion in Wright, emphasizing the holding
in Cavanaugh in support of the conclusion that the Michigan Constitution provides a
broader privilege against self-incrimination than the federal Constitution. Wright, 441
Mich at 168 (opinion by BRICKLEY, J.), citing Cavanaugh, 246 Mich 680.
Therefore, after tracing the rule prohibiting the police from denying an attorney
access to a client undergoing police interrogation from Bender back to Wright, it is clear
that although there has not always been majority support for a single view, the justices in
18
support of the Bender rule rooted their analysis in the Michigan Constitution. Moreover,
those justices necessarily relied on Cavanaugh (as evidenced by the Bender opinions’
citations of the Wright opinions, which cited Cavanaugh) as the primary source for the
broader interpretation of the right against self-incrimination under the Michigan
Constitution.7
By rejecting Bender on the grounds that it lacks moorings in the Michigan
Constitution, the majority erroneously adopts a “literal application” of Const 1963 art 1,
§ 17, and “ignore[s] the jurisprudential history of this Court” embodied in Cavanaugh
and continued in Wright and Bender “in favor of the analysis of the United States
Supreme Court . . . .” Sitz v Dep’t of State Police, 443 Mich 744, 758; 506 NW2d 209
(1993). In doing so, the majority “disregard[s] the guarantees that our constitution
confers on Michigan citizens merely because the United States Supreme Court has . . .
not extended such protection.” Id. at 759.
7
The majority rejects this conclusion, positing that “this Court did not rely on
Cavanaugh for the proposition that the compulsory self-incrimination provision
contained in Article 1, § 17 provides protections that extend beyond those afforded by the
Fifth Amendment.” However, in the same breath, the majority concedes that my opinion
in Wright cited Cavanaugh for the premise that a violation of the protections that are now
contained in art 1, § 17 occurs when the police conceal from a suspect that counsel has
been made available to him. See Wright, 441 Mich at 157-158 (opinion by CAVANAGH,
C.J.). Moreover, Bender cited Wright for support. See, e.g., Bender, 452 Mich at 611-
612 (opinion by CAVANAGH, J.). Accordingly, the majority is misguided in its
interpretation of Cavanaugh’s effect on the analysis in Wright and Bender.
19
IV. ADDITIONAL AND INDEPENDENT SUPPORT FOR BENDER IN THE
MICHIGAN CONSTITUTION
Although I believe that art 1, § 17 of our Constitution fully supports Bender, as I
explained in Wright, 441 Mich at 156-157 (opinion by CAVANAGH, C.J.), a rule
prohibiting police efforts to deprive a suspect of the knowledge that his lawyer is
attempting to contact him is also alternatively supported by art 1, § 20.8 See, also,
Bender, 452 Mich at 611 n 14 (opinion by CAVANAGH, J.) (citing Wright for the
conclusion that “Const 1963, art 1, § 20 . . . supported suppression of the defendant’s
statement”).
“There is some overlap between the privilege against self-incrimination . . . and
the right to counsel;” however, “ ‘the right to counsel cases are concerned with the
integrity of the adversarial process.’ ” Wright, 441 Mich at 156 n 2 (opinion by
CAVANAGH, C.J.), quoting Loewy, Police-Obtained Evidence and the Constitution:
Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used
Evidence, 87 Mich L Rev 907, 928 (1989). As I stated in Wright, 441 Mich at 156 n 2
(opinion by CAVANAGH, C.J.), I believe that permitting police to frustrate counsel’s
efforts to communicate with a suspect “threatens the adversarial system by allowing the
police to manipulate the interrogation process,” which is particularly problematic in
Michigan, given that under the decision of a majority of this Court in People v Cipriano,
431 Mich 315; 429 NW2d 781 (1988), police can purposely delay a suspect’s
8
Const 1963, art 1, § 20 states, in relevant part, “[i]n every criminal prosecution, the
accused shall have the right to . . . have the assistance of counsel for his or her
defense . . . .”
20
arraignment. In my view, the majority today exacerbates the errors in Cipriano by
sanctioning police efforts during that prearraignment period to obstruct a lawyer’s
attempts to contact and advise his client, and to keep the suspect in the dark about the
lawyer’s attempts.
Kirby v Illinois, 406 US 682, 688; 92 S Ct 1877; 32 L Ed 2d 411 (1972),
established the federal limitation on when the right to counsel attaches: the right attaches
“only at or after the time that adversary judicial proceedings have been initiated against
him.” Kirby further stated that, as an example, the right attaches “at the time of
arraignment . . . .” Id. However, in Michigan, the federal limitation was at least partially
rejected in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), and People v
Jackson, 391 Mich 323, 338; 217 NW2d 22 (1974) (stating that “independent of any
Federal constitutional mandate, . . . both before and after commencement of the judicial
phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal
identification or a photographic identification”).9 Therefore, “[a]lthough Jackson and
Anderson were not explicitly premised on either the Sixth Amendment or Const 1963,
art 1, § 20, they support the view that prearraignment events can trigger our state
constitutional right to counsel.” Wright, 441 Mich at 159-160 (opinion by CAVANAGH,
C.J.).
9
I recognize that, in People v Hickman, 470 Mich 602; 684 NW2d 267 (2004), a majority
of this Court overruled Anderson and its progeny, including Jackson. However, I
continue to believe that this Court erred when it overruled Anderson for the reasons stated
in Justice MARILYN KELLY’s dissent in Hickman. Id. at 611-621 (MARILYN KELLY, J.,
dissenting).
21
I continue to believe that Jackson’s and Anderson’s rejection of the Kirby
restriction is proper because the Kirby restriction is arbitrary. Specifically, as explained
in Patterson v Illinois, 487 US 285, 290 n 3; 108 S Ct 2389, 101 L Ed 2d 261 (1988),
post-indictment Miranda waivers are sufficient only until an actual attorney-client
relationship is established and nothing changes at the time of formal charging if there was
no attorney-client relationship yet established. Thus, “[t]he converse must also hold true:
If an attorney-client relationship exists before arraignment, nothing will change at the
time of arraignment to cause the right to counsel to suddenly blossom where none existed
before.” Wright, 441 Mich at 160 (opinion by CAVANAGH, C.J.). Accordingly, Anderson
and Jackson correctly recognized that there are “critical stages” in prosecution that can
occur before formal charging. I continue to believe that “custodial interrogation of an
accused who is represented by counsel is just such a situation.” Id. at 160-161.
Moreover, in my view, “the police can be held accountable for knowing that the accused
is represented by counsel ‘to the extent that the attorney or the suspect informs the police
of the representation.’ ” Id. at 161, quoting Moran, 475 US at 460 n 46 (Stevens, J.,
dissenting).
Accordingly, because I believe that a suspect “faced with custodial interrogation
has the specific right, as part of his overall right to counsel, to be informed of his
attorney’s attempts to contact him,” I would hold that “a waiver of that right cannot be
valid when the police merely inform the suspect, in generalized terms, that he has the
right to a lawyer if he wishes.” Wright, 441 Mich at 161 n 5 (opinion by CAVANAGH,
C.J.). Simply stated, “[a] defendant cannot knowingly and intelligently waive his specific
22
right to speak with an attorney who is immediately available and trying to contact him
when he is unaware that the attorney is available and trying to contact him.” Id. Instead,
in my view, “the waiver can only be valid if the suspect is timely and accurately informed
of his attorney’s immediate availability and attempts to contact him, and then knowingly,
intelligently, and voluntarily waives the right to see the attorney.” Id.In summary, contrary to the majority’s conclusion that Bender lacks any
connection to the Michigan Constitution, our caselaw establishes that Bender is firmly
rooted in art 1, § 17. Accordingly, Bender was properly decided and should not be
overruled. Moreover, in my view, Bender is also supported by the right to counsel under
art 1, § 20.
V. STARE DECISIS
In light of the preceding analysis, it is clear that Bender is founded on the
Michigan Constitution and is consistent with this Court’s prior precedent. Bender was
correctly decided and no further stare decisis consideration is needed. However, even
accepting the majority’s faulty conclusion that Bender was wrongly decided, I do not
agree that its decision to overrule Bender is supported by stare decisis principles.
The United States Supreme Court has explained that the doctrine of stare decisis
“promotes the evenhanded, predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the actual and perceived integrity
of the judicial process.” Payne v Tennessee, 501 US 808, 827; 111 S Ct 2597; 115 L Ed
2d 720 (1991). Our longstanding doctrine of stare decisis provides that “principles of law
deliberately examined and decided by a court of competent jurisdiction should not be
23
lightly departed.” Brown v Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215
(1996) (quotation marks and citations omitted), overruled in part on other grounds by
Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007). As a result,
“a stare decisis analysis should always begin with the presumption that upholding the
precedent involved is the preferred course of action.” Petersen v Magna Corp, 484 Mich
300, 317; 773 NW2d 564 (2009) (opinion by MARILYN KELLY, C.J.). Thus, “overturning
precedent requires more than a mere belief that a case was wrongly decided,” McCormick
v Carrier, 487 Mich 180, 211; 795 NW2d 517 (2010), and the presumption in favor of
upholding precedent “should be retained until effectively rebutted by the conclusion that
a compelling justification exists to overturn the precedent.” Petersen, 484 Mich at 317(opinion by MARILYN KELLY, C.J.).
Moreover, when our caselaw concludes that the Michigan Constitution provides
greater protection to our citizens than that provided by the federal Constitution, I believe
“this Court should be required to show a compelling reason to depart from [that] past
precedent.” Goldston, 470 Mich at 559 (CAVANAGH, J., dissenting), citing People v
Collins, 438 Mich 8, 50; 475 NW2d 684 (1991) (CAVANAGH, C.J., dissenting).
Several of the criteria discussed in Petersen10 weigh in favor of upholding Bender
rather than overruling it: (1) Bender provides a practical and workable rule; (2) facts and
10
In Petersen, Chief Justice MARILYN KELLY provided a nonexhaustive list of criteria for
consideration when a court engages in a stare decisis analysis, but no single criterion is
determinative, and a given criterion need only be evaluated if relevant. Petersen, 484
Mich at 320 (opinion by MARILYN KELLY, C.J.). By expanding on the test from
Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000), which the majority
applies, Petersen’s test is also more respectful of precedent than Robinson.
24
circumstances have not changed, or come to be seen so differently, as to have robbed
Bender of significant application or justification; (3) other jurisdictions have adopted
rules similar to Bender that are more protective of the privilege against self-incrimination
than the federal rule; and (4) overruling Bender is likely to result in serious detriment
prejudicial to public interests. See Petersen, 484 Mich at 320 (opinion by MARILYN
KELLY, C.J.).
Bender’s per se rule prohibiting police interference with counsel’s efforts to
communicate with a suspect is easily understood by the police and creates little, if any,
uncertainty regarding what is required: the police must inform a suspect that counsel has
been retained for him and is attempting to contact him. Bender, 452 Mich at 620(opinion by CAVANAGH, J.). See, also, Wright, 441 Mich at 163-164 (opinion by
CAVANAGH, C.J.) (stating that “if an attorney takes diligent steps to inform the police that
he represents and wishes to contact a suspect held in custody, the police must take prompt
and diligent steps to inform the suspect of that fact”). Accordingly, as even the majority
admits, Bender provides a practical and workable rule. See ante at 49-50. This factor
therefore weighs heavily in favor of upholding Bender.
Nevertheless, the majority inexplicably applies an approach that merely pays lip
service to the obvious practical workability of Bender while primarily considering
whether a regime other than the Bender rule might be equally workable. A stare decisis
analysis focuses on the established rule’s workability; not whether some other rule may
or may not be applied as easily as the established rule. See Petersen, 484 Mich at 320(opinion of MARILYN KELLY, C.J.) (considering “whether the rule has proven to be
intolerable because it defies practical workability”) (emphasis added); and Robinson, 462
25
Mich at 464 (considering “whether the decision at issue [i.e., the established rule] defies
‘practical workability’ ”) (emphasis added). That focus on the established rule is
consistent with the understanding that upholding the precedent involved is “the preferred
course, because it promotes the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Hohn v United States, 524 US 236, 251; 118
S Ct 1969; 141 L Ed 2d 242 (1998) (citation and quotation marks omitted). See, also,
Petersen, 484 Mich at 317 (opinion by MARILYN KELLY, C.J.). The majority’s faulty
stare decisis analysis features its attempt to manipulate this factor with an approach that
lacks any support in caselaw and all but ignores the practical workability of the existing
rule.
Further supporting the conclusion that Bender should not be overruled is the fact
that circumstances have not come to be seen so differently as to have robbed Bender of
significant justification. Indeed, protection of a citizen’s constitutional rights within the
custodial-interrogation setting remains as important today as it was when Bender was
decided 18 years ago, as evidenced by this Court’s and the United States Supreme
Court’s repeated consideration of the issue.
Moreover, many states have, as Michigan did in Bender, recognized that Moran
merely establishes a minimum requirement and have determined that their citizens enjoy
greater state constitutional protection than afforded by Moran.11 As a result, Bender is
11
See, e.g., Stoddard, 206 Conn at 164-167 (declining to follow Moran based on state
precedent interpreting the state constitution); Bryan v State, 571 A2d 170, 176-177 (Del,
1990) (same); Commonwealth v Mavredakis, 430 Mass 848, 858-860; 725 NE2d 16926
far from unique in concluding that state law provides greater constitutional protections
than the federal Constitution regarding the privilege against self-incrimination. Although
I recognize that some states have adopted Moran as consistent with the protections
provided by their state Constitutions, the fact that the states are divided on the issue at
most renders this factor neutral.
Finally, in my view, the most significant factor in favor of upholding Bender is
that the majority’s contrary decision is likely to result in serious detriment prejudicial to
public interests. The majority disagrees, claiming that “[i]t is hard to comprehend a
societal interest that is furthered by protecting persons who have engaged in serious
criminal activities from the consequences of their own voluntary and intelligent
decisions.” Ante at 52. To begin with, this statement entirely ignores the overriding
principle of our criminal justice system: that a suspect is presumed innocent until proven
guilty beyond a reasonable doubt. Thus, whether there is a “societal interest” in
protecting any particular conduct of a person who has “engaged in serious criminal
activities” is entirely irrelevant. However, in my view, the “societal interest” in
(2000) (same); State v Roache, 148 NH 45, 49-51; 803 A2d 572 (2002) (same); People v
McCauley, 163 Ill 2d 414, 423-425; 206 Ill Dec 671; 645 NE2d 923 (1994) (same); State
v Simonsen, 319 Or 510, 514-518; 878 P2d 409 (1994) (same); Roeder v State, 768 SW2d
745, 753-754 (Tex App Ct, 1988) (same); Reed, 133 NJ at 250 (declining to follow
Moran in light of state statutory and common law); Haliburton v State, 514 So 2d 1088,
1090 (Fla, 1987) (declining to follow Moran and finding a violation of the Due Process
Clause of the Florida Constitution); and West v Commonwealth, 887 SW2d 338, 342-343
(Ky, 1994) (declining to follow Moran because the Kentucky Constitution provides
greater protection than the federal Constitution and a state criminal rule providing access
to counsel predating Moran remained applicable). See, also, Reed, 133 NJ at 265 (noting
that “[p]rior to Moran, a majority of states followed a rule similar to” Bender).
27
protecting the ability of those merely accused of a crime to make a truly “knowing and
intelligent” waiver of their constitutional rights is of the highest order. Moreover, “if law
enforcement officers adhere to [Bender], there will be no reversal of convictions on the
basis of failure by officers to inform the suspect that his counsel wished to speak with
him before he made a confession.” Bender, 452 Mich at 597 n 1 (opinion by CAVANAGH,
J.). Therefore, if a Bender violation occurs, “it will be a government agent, and not this
Court, that is responsible for thwarting and hampering cases of urgent social
concern . . . .” Id.Moreover, I disagree with the majority’s subjective and unsupported conclusion
that Bender “impinge[s] on the effectiveness of law enforcement . . . .” Ante at 51. For
starters, it does not appear that Michigan’s law enforcement has suffered from a serious
inability to effectively enforce the law in the 18 years since Bender was decided.12
Apparently, the many other states that have declined to follow Moran have likewise
managed to avoid becoming lawless wastelands of crime, despite the majority’s concern.
See, also, Moran, 475 US at 460 (Stevens, J., dissenting) (stating that an argument similar
to the majority’s “is not supported by any reference to the experience in the states that
have adopted” a rule similar to Bender), and Goldston, 470 Mich at 568-569
12
The majority disagrees, arguing, “the negative effects of Bender are not obviously
seen . . . .” Ante at 51 n 39. In my view, Bender protects our citizen’s constitutional
rights; accordingly, I cannot agree with the majority’s conclusion that Bender’s effects
are “negative.” Likewise, the majority’s recitation of the prosecution’s protestations
against Bender could apply with equal force to other constitutional protections afforded
to criminal suspects. Nevertheless, we uphold these constitutional protections. We
should do the same with Bender because the goal is justice through proper application of
constitutional principles, not convictions at any cost.
28
(CAVANAGH, J., dissenting) (considering the similar concern of the majority in that case
“that the high cost of the exclusionary rule exacts too great a toll on our justice system”
and noting that “our state has managed to exist for decades with the exclusionary rule and
our streets have yet to become teeming with criminals”).
Although I think that the majority’s concern that Bender unduly interferes with
law enforcement is exaggerated, I am nevertheless aware that the Bender rule “may
decrease the likelihood that interrogating officers will secure a confession.” Bender, 452
Mich at 618 (opinion by CAVANAGH, J.). However, that cost must be balanced against
the result of the majority’s favored rule. “[P]olice deception of a suspect through
omission of information regarding attorney communications greatly exacerbates the
inherent problems of incommunicado interrogation . . . .” Moran, 475 US at 452(Stevens, J., dissenting). Accordingly, while confessions “are not only a valid, but also
an essential part of law enforcement,” Bender, 452 Mich at 597 n 1 (opinion by
CAVANAGH, J.), “ ‘[t]he quality of a nation’s civilization can be largely measured by the
methods it uses in the enforcement of its criminal law.’ ” Miranda, 384 US at 480,
quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv L Rev 1, 26
(1956).
No system worth preserving should have to fear that if an accused is
permitted to consult with a lawyer, he will become aware of, and exercise,
[his rights to remain silent and to counsel]. If the exercise of constitutional
rights will thwart the effectiveness of a system of law enforcement, then
there is something very wrong with that system. [Escobedo v Illinois, 378
US 478, 490; 84 S Ct 1758; 12 L Ed 2d 977 (1964).]
29
VI. CONCLUSION
Bender has stood undisturbed for nearly 20 years and has foundations as far back
as 1929. See Cavanaugh, 246 Mich 680. Moreover, Bender correctly determined that art
1, § 17 of the Michigan Constitution provides Michigan’s citizens greater protection than
its federal counterpart. That conclusion, in my view, is further supported by the Court’s
interpretation of art 1, § 20 of our Constitution. Finally, the doctrine of stare decisis
weighs against overruling Bender. Accordingly, I dissent.
Michael F. Cavanagh
30
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 146211
GEORGE ROBERT TANNER,
Defendant-Appellee.
MCCORMACK, J. (dissenting).
I respectfully dissent from the majority’s decision to use this case as a vehicle for
overruling People v Bender, 452 Mich 594; 551 NW2d 71 (1996). While I agree with the
majority that “stare decisis is a principle of policy rather than an inexorable command,” I
do not find adequate reason to depart from the “preferred course” of leaving Bender’s
settled precedent intact. Robinson v Detroit, 462 Mich 439, 463-464; 613 NW2d 307
(2000) (internal quotation marks omitted). First, I do not share the majority’s confidence
that the rule recognized in Bender lacks a constitutional basis. Rather, I agree with
Justice CAVANAGH that this rule is well moored in Article 1, § 17 of the Michigan
Constitution, with its jurisprudential roots set in People v Cavanaugh, 246 Mich 680; 225
NW 501 (1929). I appreciate and, in certain respects, share the majority’s dissatisfaction
with Bender’s fractured treatment of this issue; none of the shortcomings I see in the
opinion, however, are sufficient to undermine the substantive integrity of its conclusion
or render it “wrongly decided.”
Nor, in my mind, would any other consideration favor disruption of that
precedent.1 As Justice CAVANAGH aptly explains, in the nearly twenty years since
Bender was decided, there has been no indication that its straightforward rule has defied
practical workability in any respect, or has produced the “mischief” and harm of which
the prosecution and majority warn.2 Rather, by now removing this simple and settled
rule, the majority works an undue detriment upon the constitutional protection long
recognized by this Court and relied upon by the people of Michigan: that should they find
themselves detained as suspects of a crime, they will not be held incommunicado from
those who have been retained or appointed to advise them. And I see no changes in the
law or facts that render Bender’s recognition and implementation of this principle no
1
Justice CAVANAGH applies Petersen v Magna Corp, 484 Mich 300, 317-320; 773
NW2d 564 (2009) (opinion by MARILYN KELLY, C.J.), to reach this same conclusion.
While I do not likewise rely on that case or framework, I find that much of the substance
of his reasoning applies with equal force under the governing standard set forth in
Robinson. See Robinson, 462 Mich at 464 (explaining that, before this Court overrules a
precedent it deems “wrongly decided,” it “should also review whether the decision at
issue defies ‘practical workability,’ whether reliance interests would work an undue
hardship, and whether changes in the law or facts no longer justify the questioned
decision”).
2
Indeed, I, like Justice CAVANAGH, have difficulty seeing how a rule requiring police to
inform suspects of their counsel’s availability might produce any sort of detriment with
which our society should be duly concerned. I have even more difficulty with the
majority’s suggestion that such a rule might harm those suspects themselves, because
“police officers and prosecutors will almost certainly be more reluctant to facilitate
counsel before one is legally required if the consequence is the suppression of evidence.”
Ante at 45 n 37. It is, of course, the deliberate concealment of counsel, not the facilitation
of it, that merits suppression under Bender. Bender’s rule would thus only discourage the
police and prosecution from assisting in the procurement of counsel if they planned to
withhold that counsel from the suspect—which would be a peculiar form of “facilitation”
from the suspect’s perspective, to say the least, and one not likely to be missed.
2
longer justified. To the contrary, our current debate over the propriety of that rule simply
echoes the one taken up by the Bender Court years ago; its contours have remained the
same, as have the arguments and authority offered by each side in support. The Justices
involved have changed (for the most part), but of course that does not warrant
disturbance of our precedent.
I do, however, see one meaningful difference between the instant case and Bender,
and it too counsels against the majority’s chosen course. As the majority stresses, there
was no dispute in Bender that the defendants made their incriminating statements to the
police without requesting or even expressing interest in securing the representation of
counsel beforehand. Nonetheless, those statements were suppressed because the police
did not inform the defendants of the counsel that their parents had unilaterally decided to
retain for them. This fact animated the Bender dissent’s chief objections to that
decision’s per se rule, shared by the majority here: that it permits suppression of
confessions based strictly on circumstances beyond the cognizance and apparent concern
of the suspect, the individual to whom the constitutional rights at issue belong. See
Bender, 452 Mich at 649-650, 656 (BOYLE, J., dissenting).
The instant case, however, is not Bender, and these concerns are not implicated.
For, unlike the defendants in Bender, the defendant’s incriminating statements in this
case only came after he repeatedly expressed his desire for counsel but to no avail. The
first request came when the defendant was initially taken into custody on the morning of
October 17, 2011. Upon being read his rights, the defendant indicated that he would not
waive them and requested that counsel be provided to him. The interrogating detectives
acknowledged the request but nonetheless continued to press him into talking; the
3
defendant, however, again asserted his right to counsel, reiterating, “I would like a lawyer
for consultation.” The defendant was then returned to lock-up, and heard nothing further
regarding his requests. His next request came the following day, when the jail
administrator came to see the defendant in response to his statement to a mental health
worker that he “had some things he wanted to get off of his chest.” When the
administrator asked if the defendant “want[ed] to talk to somebody,” the defendant said
yes, and asked, “[C]an you get me an attorney?” After telling the defendant that
procuring an attorney was not his job, the administrator offered to get the detectives
instead—the same ones from whom the defendant had already requested counsel. The
defendant acquiesced. The defendant’s interest in the assistance of counsel was
sufficiently clear at this time that the jail administrator and police contacted the county
prosecutor, who arranged for counsel to be appointed and sent to the jail. Nonetheless, at
no point during his custody was the defendant given any indication that his rightful
requests for counsel would ever, in fact, be honored, regardless of whom or how often he
asked—let alone that such counsel had been appointed and was readily available to assist
him.
It was under these circumstances that the defendant’s waiver of rights and
incriminating statements were made. The defendant stressed these circumstances in
arguing for suppression,3 and they, in turn, drove the trial court’s determination to that
effect:
3
The majority notes that defense counsel conceded before the trial court that the
defendant’s eventual waiver of his Miranda rights was “made voluntarily.” It is entirely
clear, however, that counsel did not intend this concession to suggest that the defendant’s
4
Given these facts, the attorney was there, the police knew it, he was not
permitted to go back and see his client. . . . [The defendant], who had once
invoked his right to remain silent and had indicated at least on the 18th with
knowledge to the police officials that he might possibly be interested in an
attorney, was not told that one was there waiting for him. Based upon that,
I will grant the motion of the Defendant to suppress [his] confession . . . . [4]
unrequited requests for counsel bore no improper influence over his subsequent waiver
and confession; rather, counsel consistently emphasized these requests and how they
made suppression all the more warranted here than in Bender—a proposition, as
discussed below, with which the trial court appeared to agree. See Defendant’s Brief in
Support of Motion to Suppress Statement (explaining that, unlike in Bender, the
defendant here invoked his right to counsel, “mak[ing] the police officers[’] actions of
not informing the Defendant that an attorney had been appointed to represent him and
was present at the jail when they gave him Miranda rights, all the more curious”);
Evidentiary Hearing Closing Argument by Defense Counsel (stressing at the outset of his
closing argument in favor of suppression that “once [the defendant] invoked his right to
an attorney he never really received a benefit from it”; arguing further that the
defendant’s “case is even stronger than” Bender because, inter alia, when the prosecutor
was contacted, resulting in appointment of counsel, “it’s uncontested that there was a
request for a lawyer”; and questioning the prosecution’s suggestion that appointed
counsel “was only on standby,” to be made available only “if [the defendant] guessed
after asking for a lawyer twice that somehow one would be there for him”).
4
Accordingly, I cannot agree with the majority’s characterization of the trial court’s
ruling as simply that the “defendant’s statement required suppression under Bender,
because the police officers had failed to inform him that an attorney was present at the
jail and had established contact with the officers.” Ante at 4. While this failure was
certainly enough in itself to warrant suppression under Bender, it is apparent that the trial
court also found significant that this failure came in the face of the defendant’s repeated
requests for counsel. Similarly, the majority states that the trial court ruled that the
defendant “affirmatively reinitiated contact with police officers on October 18, 2011,
without reasserting his right to counsel.” Ante at 4. While the majority may be
comfortable with that conclusion, I see no determination by the trial court to that effect.
Rather, the court recognized, as described above, that the jail administrator came to speak
with the defendant upon hearing of his desire to “get something off [his] chest”; “the first
thing that [the defendant] brings up is he asked if [he] could get an attorney”; the
administrator declined and offered to get the detectives instead; and the defendant
“seemed to understand that and was agreeable for him to get the detectives.” Nor, given
these circumstances, did the trial court put much stock in the prosecution’s “no good deed
goes unpunished” lament—echoed by the majority here—that counsel’s appointment was
5
Both the defendant and the trial court focused on Bender as the legal basis for this
conclusion, and fairly so, as its settled and straightforward rule plainly sweeps these
circumstances within its scope. The defendant’s frustrated attempts to invoke his right to
counsel, however, just as plainly implicate Cavanaugh, which sits at the core of Bender’s
rule and persists wholly intact without it. Taking Bender off the books thus does little to
resolve the actual evidentiary question at issue in this case: whether the defendant’s
statements should be suppressed on constitutional grounds.5 Bender’s rule, while
simply a precautionary measure, voluntarily undertaken and wholly conditional upon
whether the defendant (yet again) asked for it. Instead, the court stressed that, although
the detective, “and I’m not picking on him, . . . talks about [the attorney] being there only
if needed,” there was no confusion among the detectives and the jail administrator that
the attorney had been sent for the defendant, and the attorney, while perhaps unsure of
the defendant’s name at that time, “knew he was there to talk to somebody and represent
them regarding possible charges of murder or homicide that would be filed . . . against
them.”
5
Despite their prominence in both the defendant’s arguments and the trial court’s ruling,
the majority pays little mind to the defendant’s requests for counsel, summarily
suggesting that they were constitutionally meaningless and left the defendant here no
differently situated than the defendants in Bender. The majority even holds this case out
as emblematic of “the problems with Bender,” as “the prosecutor, on behalf of the
people, was effectively sanctioned by the suppression of defendant’s voluntary
statements for having taken the precaution of seeking out counsel in the event that
defendant requested counsel before or during his interrogation.” Ante at 45 n 37. I, like
the trial court, cannot so easily disregard the defendant’s requests for counsel. The record
here paints a substantially different and more complicated picture than the one now
offered by the majority—one in which counsel was procured because, indeed, the
defendant affirmatively desired and repeatedly asked for it, and in which the prosecution
and police have been “sanctioned” not for acknowledging those requests, but for failing
to duly honor them. The trial court saw significance in these complications; in light of its
due reliance on Bender, however, it was not required to take up the full range of their
constitutional import. With Bender now gone, I would leave that assessment to the trial
court in the first instance, if and when the defendant again seeks suppression of his
statements on a constitutional basis, state or federal, that demands it.
6
certainly sufficient to sustain this relief, is not necessary to it. The majority may
disapprove of that rule, but Bender is not the case before us, and I fail to see how the
instant case invites or enables the majority to act on that disapproval as they have.
Accordingly, I cannot join in the majority’s decision to reach beyond the facts of this case
to overrule Bender’s settled and sound precedent.
Bridget M. McCormack
7