MARKMAN, J.

Defendant's first trial was declared a mistrial because of a hung jury. Following defendant's second jury trial, he was convicted of assault with intent to murder and possession of a firearm during the commission of a felony. On appeal, the Court of Appeals reversed defendant's convictions, concluding inter alia that defendant had been improperly impeached with his silence when the prosecutor made repeated references to his failure to testify at his first trial. We granted leave requesting that the parties address: (1) whether the prosecutor's impeachment of defendant's testimony using defendant's failure to testify at his earlier trial violated defendant's Fifth Amendment right against self-incrimination and (2) whether prior consistent statements by the complainant were admissible under MRE 801(d)(1)(B). People v. Clary, 491 Mich. 933, 814 N.W.2d 292 (2012).

Because we believe that the prosecutor's impeachment of defendant's testimony with his failure to testify at his earlier trial was not improper, we reverse the judgment of the Court of Appeals to that extent. The Court of Appeals also addressed whether the prosecutor's references to defendant's post-arrest, post-Miranda silence were improper and held that reversal was not required because the record was unclear regarding whether the post-arrest silence also constituted post-Miranda silence. However, our review of the transcript of defendant's arraignment indicates that defendant was informed of his Miranda rights at his arraignment, and thus we hold that the prosecutor's references to defendant's post-arrest, post-Miranda silence at trial plainly violated Doyle v. Ohio, 426 U.S. 610, 618-619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Accordingly, we do not disturb the ultimate disposition reached by the Court of Appeals, i.e., the reversal of defendant's convictions. We otherwise vacate this Court's June 6, 2012 order granting leave to appeal and deny the prosecutor's application for leave to appeal because we are not persuaded that this Court should review the remaining question presented. Finally, we remand this case to the trial court for further proceedings consistent with this opinion. If defendant chooses to testify at a third trial, the prosecutor may again refer to defendant's failure to testify at his first trial without violating defendant's constitutional rights.

I. FACTS AND HISTORY

At defendant's first trial, the complainant testified that defendant shot him. Defendant did not testify. The trial was eventually declared a mistrial because of a hung jury. At defendant's second trial, the complainant again testified that defendant shot him, but this time defendant testified that he did not shoot the complainant. The prosecutor impeached defendant's testimony by asking him why he had not provided that testimony at the first trial.1 The prosecutor also commented on defendant's silence at his first trial during closing arguments.2 Following defendant's second jury trial, defendant was convicted of assault with intent to murder, MCL 750.83, and possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals reversed defendant's convictions, concluding, among other things, that defendant was improperly impeached with his silence when the prosecutor made several references to defendant's failure to testify at his first trial. People v. Clary, unpublished opinion per curiam of the Court of Appeals, issued February 16, 2012 (Docket No. 301906), 2012 WL 516072. We granted the prosecutor's application for leave to appeal. Clary, 491 Mich. 933, 814 N.W.2d 292.

II. STANDARD OF REVIEW

Whether defendant was improperly impeached with his silence is a question of law that we review de novo. People v. Borgne, 483 Mich. 178, 184, 768 N.W.2d 290 (2009).

III. ANALYSIS

A. 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...." U.S. Const, Am. V. See also Const. 1963, art. 1, § 17. The Fifth Amendment has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in order to protect the privilege against compelled self-incrimination during custodial police interrogations, the suspect "must be warned that he has a right to remain silent [and] that any statement he does make may be used as evidence against him...." The United States Supreme Court has held that "the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence [at trial] or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). That is, the Fifth Amendment prohibits using a defendant's failure to take the stand as substantive evidence of guilt. Id. The Court has also held that "`[w]hen a person under arrest is informed, as Miranda requires, that he may remain silent, [and] that anything he says may be used against him,'" "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence [at the time of his arrest] to be used to impeach an explanation subsequently offered at trial." Doyle, 426 U.S. at 618-619, 96 S.Ct. 2240 (citation omitted); see also Borgne, 483 Mich. at 186-188, 768 N.W.2d 290; People v. Shafier, 483 Mich. 205, 212-214, 768 N.W.2d 305 (2009).3

However, the United States Supreme Court has also held that "the use of prearrest silence to impeach a defendant's credibility violates [n]either the Fifth [n]or the Fourteenth Amendment to the Constitution." Jenkins v. Anderson, 447 U.S. 231, 232, 238, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); see also People v. Cetlinski (After Remand), 435 Mich. 742, 757, 460 N.W.2d 534 (1990) ("[N]either the Fifth Amendment nor the Michigan Constitution preclude[s] the use of prearrest silence for impeachment purposes."). Moreover, it has also held that "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). Finally, it has held that "the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence" at his first trial. Jenkins, 447 U.S. at 235, 100 S.Ct. 2124, citing Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926).

B. RAFFEL AND STEWART

In Raffel, 271 U.S. at 496, 499, 46 S.Ct. 566, the United States Supreme Court held that it was not "error to require the defendant, Raffel, offering himself as a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial."

The Court then held that asking the defendant about his silence at his first trial was logically relevant and competent within the scope of the general rules of cross-examination:

In summary, the Court held:

We are not persuaded by the Court of Appeals' attempt to distinguish Raffel. The Court of Appeals stated, "Unlike the defendant in Raffel, defendant in this case did not contradict the testimony of a witness offered at both his first and second trial." Clary, 2012 WL 516072, unpub. op. at 8. We respectfully disagree. In both Raffel and the instant case, the defendant contradicted the testimony of a witness offered at both the first and second trials. In Raffel, the defendant contradicted the testimony of a government agent who testified that the defendant had made admissions of guilt, and in the instant case, defendant contradicted the testimony of the complainant who testified that defendant shot him.

We are equally unpersuaded by the Court of Appeals' conclusion that the instant case is more like Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). Unlike in Raffel and the instant case, in Stewart the defendant did not contradict the testimony of a witness offered at both his first and second trials. As Stewart, 366 U.S. at 5-6, 81 S.Ct. 941, explained:

This "gibberish" was apparently offered to demonstrate that the defendant was insane, which was the defendant's chief defense at all three of his trials, and not to contradict the testimony of any witness. The United States Supreme Court held that because the defendant's silence was not used for impeachment purposes, it was not admissible under Raffel. In this case, however, defendant's silence was clearly used for impeachment purposes and, thus, it is admissible under Raffel.7 We therefore hold that defendant was not improperly impeached with his silence when the prosecutor made repeated references to his failure to testify at his first trial. Accordingly, if defendant chooses to testify at a third trial, the prosecutor may again refer to defendant's failure to testify at his first trial without violating defendant's constitutional rights.8

C. DOYLE AND JENKINS

However, the prosecutor may not again refer to defendant's post-arrest, post-Miranda silence with the police because to do so would clearly violate Doyle, 426 U.S. at 618-619, 96 S.Ct. 2240, which prohibits the admission of post-arrest, post-Miranda silence with the police. At defendant's second trial, the prosecutor impeached defendant by asking him why, after he was arrested and arraigned, he had not told the police that he did not shoot the complainant. The prosecutor also referred to this silence during her closing argument. The Court of Appeals held that there was no Doyle violation because "[a]fter reviewing the record, it is unclear whether the post-arrest silence referenced by the prosecutor was also post-Miranda silence." Clary, 2012 WL 2047675, unpub. op. at 5. This Court subsequently granted defendant's motion to consider the transcript of defendant's arraignment, which shows that defendant had been informed of his Miranda rights at his arraignment. People v. Clary, ___ Mich. ___, 821 N.W.2d 314 (2012). Given this new information, it seems clear that the prosecutor's references to defendant's post-arrest, post-Miranda silence with the police violated Doyle. Accordingly, we hold that if there is a third trial, defendant's post-arrest, post-Miranda silence with the police is inadmissible.

Defendant argues that there is a tension between Raffel and Doyle because while Doyle holds that post-Miranda silence is admissible, Raffel holds that silence at an earlier trial is admissible to impeach a defendant who testifies at a subsequent trial, even though this silence is also post-Miranda silence. Although we recognize this tension, we also recognize that Raffel has not been overruled by Doyle or by any other United States Supreme Court decision. Indeed, Doyle expressly held that it was "unnecessary" to address in that case the constitutionality of a prosecutor's inquiry into silence after the time of arrest because that later silence "present[s] different considerations...." Doyle, 426 U.S. at 616 n. 6, 96 S.Ct. 2240. Specifically, Doyle explained:

Therefore, it appears that Doyle's rule prohibiting the admission of post-Miranda silence applies to silence at the time of arrest, while Raffel's rule permitting the admission of post-Miranda silence applies to silence at an earlier trial when the defendant takes the stand at a subsequent trial. This conclusion is further underscored by the fact that after Doyle was decided, the United States Supreme Court in Jenkins recognized the continued vitality of Raffel's rule that a defendant's silence at his first trial can be used to impeach the defendant at a subsequent trial if the defendant decides to take the stand. Jenkins, 447 U.S. at 235-238, 100 S.Ct. 2124. Not only did Jenkins favorably discuss Raffel at length, but it also expressly rejected the suggestion "that the constitutional rule of Raffel was limited by later decisions of the Court," explaining that "no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence." Id. at 237 n. 4, 100 S.Ct. 2124.

D. "CHILLING" FIFTH AMENDMENT RIGHTS

Defendant suggests that a person facing a trial will be less likely to rely on his right to remain silent if he knows that his reliance on that right can be subsequently used against him, that is to say, exercise of the Fifth Amendment right against self-incrimination will be "chilled." However, as Jenkins, 447 U.S. at 236-237, 100 S.Ct. 2124, explained, "The Raffel Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights." In other words, Raffel specifically considered the argument that "the adoption of the rule contended for by the Government might operate to bring pressure on the accused to take the stand on the first trial, for fear of the consequences of his silence in the event of a second trial; and might influence the defendant to continue his silence on the second trial because his first silence may there be made to count against him," and held that this argument was "without substance." Raffel, 271 U.S. at 498-499, 46 S.Ct. 566.

It is well established that "the Constitution does not forbid `every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.'" Jenkins, 447 U.S. at 236, 100 S.Ct. 2124, quoting Chaffin v. Stynchcombe, 412 U.S. 17, 30, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). More specifically, "[i]t is well settled that the government need not make the exercise of the Fifth Amendment privilege cost free." McKune v. Lile, 536 U.S. 24, 41, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (opinion by Kennedy, J.). For example, in Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 185, 211, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971),11 the Court held that Ohio's single-trial procedure, which allowed a defendant to "remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment," was "constitutionally permissible." As the Court explained:

Similarly, in Chaffin, 412 U.S. at 18, 29, 93 S.Ct. 1977, the Court held that "in those States that entrust the sentencing responsibility to the jury, the Due Process Clause of the Fourteenth Amendment [does not] bar[ ] the jury from rendering higher sentences on retrials following reversals of prior convictions," even though the potential of "harsher sentences on retrial ... [may] have a `chilling effect' on the convicted defendant's exercise of his right to challenge his first conviction either by direct appeal or collateral attack." "The choice occasioned by the possibility of a harsher sentence, even in the case in which the choice may in fact be `difficult,' does not place an impermissible burden on the right of a criminal defendant to appeal or attack collaterally his conviction." Id. at 35, 93 S.Ct. 1977. See also Brady v. United States, 397 U.S. 742, 751, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (declining "to hold ... that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged"); People v. Wyngaard, 462 Mich. 659, 673-674, 614 N.W.2d 143 (2000) ("[T]he tactical decision that an inmate must make regarding whether to testify at a disciplinary hearing, when his testimony might potentially be used against him in a subsequent criminal proceeding, while perhaps quite difficult, does not constitute `compulsion' under the Fifth Amendment.") (citation and quotation marks omitted). Likewise, the fact that a defendant deciding whether to take the stand might consider that, if he does not take the stand and a mistrial is declared and the prosecutor decides to retry him and he subsequently decides to take the stand at his second trial, the prosecutor might be able to use his silence at his first trial to impeach his testimony at the second trial, does not place an impermissible burden on the defendant's right to not take the stand in the first place. That is, it does not "compel" the defendant "to be a witness against himself," which is all the Fifth Amendment prohibits.

"In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice." Jenkins, 447 U.S. at 238, 100 S.Ct. 2124. In this case, as in Jenkins, the challenged governmental practice is impeachment on cross-examination of a defendant, and as Jenkins, 447 U.S. at 238, 100 S.Ct. 2124, explained:

A defendant in a criminal case does not have to testify. However, "[i]f he takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness...." Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958); see also People v. Collier, 426 Mich. 23, 38, 393 N.W.2d 346 (1986) ("When a defendant at trial elects to waive his privilege not to testify and takes the stand, attempted impeachment is a time-honored method of advancing the truthfinding function."). "Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all." Brown, 356 U.S. at 155, 78 S.Ct. 622. However, "[h]e cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, [also] an immunity from cross-examination on the matters he has himself put in dispute." Id. at 155-156, 78 S.Ct. 622. Indeed, if the Fifth Amendment were interpreted to confer a "`right to set forth to the jury all the facts which tend in [the defendant's] favor without laying himself open to cross-examination upon those facts,'" "[i]t would make of the Fifth Amendment not only a human safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell." Id. at 155-156, 78 S.Ct. 622 (citation omitted). Because "`[t]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility,'" id. at 156, 78 S.Ct. 622 (citation omitted), the Fifth Amendment has never been interpreted as conferring that right, and we refuse to do so here today.14

IV. CONCLUSION

For these reasons, we hold that defendant was not improperly impeached with his silence when the prosecutor made repeated references to defendant's failure to testify at his first trial. We therefore reverse the judgment of the Court of Appeals to the extent that it conflicts with this holding. We also hold that the prosecutor's references to defendant's post-arrest, post-Miranda silence at trial plainly violated Doyle. Accordingly, we do not disturb the ultimate disposition reached by the Court of Appeals, i.e., the reversal of defendant's convictions. We otherwise vacate this Court's June 6, 2012 order granting leave to appeal and deny the prosecutor's application for leave to appeal because we are not persuaded that this Court should review the remaining question presented. We also remand this case to the trial court for further proceedings consistent with this opinion. If defendant chooses to testify at a third trial, the prosecutor may again refer to his failure to testify at his first trial without violating defendant's constitutional rights.

YOUNG, C.J., and MARILYN J. KELLY and ZAHRA, JJ., concurred with MARKMAN, J.

McCORMACK, J. (concurring).

I join all but part III(D) and footnote 9 of the majority opinion. I write separately for two reasons: first, to elaborate on the majority's discussion of the tension between the holdings in Raffel v. United States1 and Doyle v. Ohio2 and second, to note that the law remains unclear concerning the evidentiary value of a defendant's silence even if its admission is not barred by the United States Constitution. Accordingly, while there are significant points on which I agree with part III(D) of the majority opinion, I believe it is also important to highlight countervailing concerns regarding the use of silence.

As the majority opinion correctly observes, Raffel has not been overruled, and the United States Supreme Court has recognized its continued vitality. I further agree with the majority that the Court of Appeals' attempts to distinguish Raffel are not persuasive. For these reasons, I agree that under controlling precedent the Constitution does not bar the admission of evidence concerning defendant's silence at his first trial.

I am doubtful, however, that much of Raffel's reasoning remains sustainable in light of the subsequent Doyle decision. In particular, Raffel's holding that any Fifth Amendment protection is waived when a defendant elects to testify at his or her second trial and the prosecution questions the defendant about his or her failure to testify at the first trial seems incompatible with Doyle's reasoning. Doyle explained that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."3 Thus, questioning a defendant about why he or she did not testify at an earlier trial casts the defendant's prior silence in a negative light when the defendant might have previously relied on a constitutional protection — something expressly forbidden by Doyle.4 And as the majority observes, silence at trial is also post-Miranda silence. Moreover, the compulsion to speak at a first trial is similar to the compulsion to speak during a custodial interrogation by police. In both scenarios, the suspect/defendant is being accused of committing a crime and presented with the evidence supporting his or her guilt.

Thus, while I recognize that "no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence,"5 the significance of that statement is highly questionable in light of the due process rationale of Doyle.6 Because Jenkins involved the question of whether it was permissible to comment on a defendant's prearrest silence, which might very well not involve reliance on a constitutional protection because the suspect might be unaware of his or her right to remain silent,7 the Supreme Court in Jenkins was not forced to directly confront the tension between Raffel and Doyle.8

In this case, that tension is both present and particularly concerning because it is readily apparent from the record that defendant relied on his Fifth Amendment right in choosing to remain silent after receiving Miranda warnings.9 Thus, the precise unfairness about which the Doyle Court was concerned — allowing impeachment using silence premised on the assertion of a constitutional right — is present in this case. While the majority correctly holds that "defendant's post-arrest, post-Miranda silence with the police is inadmissible," the competing rationales set forth in Raffel and Doyle are not easily reconcilable with regard to the period following a post-Miranda police interrogation.10 Nor are they any more consistent when the silence occurred at a prior criminal proceeding. In other words, that a defendant waives his or her Fifth Amendment right when he or she chooses to take the stand, yet due process and fundamental fairness prohibit impeachment of a testifying defendant with post-Miranda silence because the defendant relied on that right, presents an analytical Gordian knot.

Despite this unresolved conflict in the law, I concur with the majority opinion because Raffel is directly controlling here and has not been overruled, whereas Doyle has not been extended to this context. Thus, it must be the correct result unless or until the United States Supreme Court reconciles the adverse rationales underlying its holdings in Raffel and Doyle. I look forward to that case.

My second and related point involves the use of a defendant's silence as an evidentiary matter. While part III(D) of the majority opinion articulates the arguments for why the use of silence is not barred under the Fifth Amendment, I believe it is important to identify some factors militating against a broad rule in favor of admissibility as an evidentiary matter. To begin with, it is telling that in the same case in which the United States Supreme Court recognized the continued vitality of Raffel, it nevertheless noted that state courts "remain[ ] free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial."11 This Court has done so on several occasions.12 The United States Supreme Court and many commentators recognize that "every post-arrest silence is insolubly ambiguous...."13 As one court has observed:

Thus, while part III(D) of the majority opinion thoroughly discusses the policy rationales for why the Fifth Amendment does not bar impeachment with prior silence when a defendant chooses to testify, it is important to note that equally compelling countervailing policies have led many courts to exclude such impeachment evidence given its potential to be highly prejudicial. The majority correctly leaves it for the trial court to decide in the first instance whether testimony concerning defendant's silence at the first trial is admissible as an evidentiary matter, including an inquiry into whether its admission would be substantially more prejudicial than probative under MRE 403.

With these observations, I do not join part III(D) or footnote 9, but otherwise concur with the Court's excellent opinion.

CAVANAGH, J. (concurring in part and dissenting in part).

I concur in the result that defendant is entitled to a new trial.

As Justice McCormack aptly notes, the United States Supreme Court's 1926 decision in Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), appears to present an anomaly in light of the due process and fundamental fairness concerns subsequently articulated in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). "Under the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment purposes a defendant's post-Miranda[1] silence." Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (emphasis added).2 This is because it is fundamentally unfair to assure a defendant that he has the right to remain silent and, thus, that his silence will not be used against him, only to later breach that promise by "using [the defendant's] silence to impeach an explanation subsequently offered at trial." Id. at 628, 113 S.Ct. 1710 (citations and quotation marks omitted). On the basis of this rationale, I agree with Justice McCormack that to hold that the prosecution, under these facts, may impeach a defendant on the basis of his or her failure to testify at a previous trial presents an "analytical Gordian knot."

Aside from the constitutional issues raised in this case, I agree with Justice McCormack that there are matters that weigh against a broad rule in favor of the admissibility of a defendant's silence as an evidentiary matter.

As Justice McCORMACK notes, Raffel held that "the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence." Jenkins v. Anderson, 447 U.S. 231, 237 n. 4, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). Yet, Raffel "did not focus on the question whether the cross-examination there involved was in fact probative in impeaching the defendant's credibility." Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). Indeed, although the United States Supreme Court has indicated that states are "free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial," Jenkins, 447 U.S. at 240, 100 S.Ct. 2124,3 the United States Supreme Court has also reiterated that "in no case has [it] intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial," Stewart v. United States, 366 U.S. 1, 5, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961) (emphasis added).4 Accordingly, the fact that impeaching a defendant with his or her silence at a prior trial might be constitutional does not mean that, as an evidentiary matter, a defendant's prior silence is automatically admissible in a later trial when a defendant elects to waive his constitutional and statutory rights in favor of testifying.5 See People v. Cetlinski (After Remand), 435 Mich. 742, 773, 460 N.W.2d 534 (1990) (Levin, J., concurring in part and dissenting in part); Jenkins, 447 U.S. at 240-241, 100 S.Ct. 2124. Rather, "whether the challenged testimony [is] admissible under an evidentiary analysis, [is] a question that must be answered whenever the prosecutor seeks to elicit a defendant's... silence." Cetlinski, 435 Mich. at 775, 460 N.W.2d 534 (LEVIN, J., concurring in part and dissenting in part) (emphasis added). See, also, Grunewald, 353 U.S. at 418-419, 77 S.Ct. 963. In cases such as this, the issue thus includes whether a defendant's invocation of a constitutional privilege involves such inconsistency with a defendant's later trial testimony that impeachment by reference to a defendant's prior silence is probative.

Notably, in other contexts, a majority of this Court has explained that impeachment with a defendant's silence "should be approached with caution." People v. Collier, 426 Mich. 23, 34, 393 N.W.2d 346 (1986) (citation and quotation marks omitted). I agree because, in my view, "whether or not the ... Constitution is implicated, a defendant's silence is not generally admissible"; a defendant's silence may not be "routinely admitted" without "carefully examin[ing] the evidentiary admissibility of a defendant's... silence...." Cetlinski, 435 Mich. at 788-789, 460 N.W.2d 534 (LEVIN, J., concurring in part and dissenting in part). And "[a] defendant's `silence' does not necessarily mean anything," generally rendering it of little probative significance and decreasing its potential for advancing the truth-seeking process. Id. at 776, 460 N.W.2d 534. See, also, People v. Conyers, 52 N.Y.2d 454, 458-459, 438 N.Y.S.2d 741, 420 N.E.2d 933 (1981). Accord United States v. Zaccaria, 240 F.3d 75, 79 (C.A.1, 2001) ("[S]ilence per se generally has little or no probative value for impeachment purposes.").6 See, also, MRE 401 and MRE 403.

Indeed, there might be possible explanations for a defendant's failure to testify, even if entirely innocent of the charge against him, including "[e]xcessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and the offences charged against him," or simply relying "upon the presumption of the law that [the defendant] was innocent of the charge, and leav[ing] the government to establish his guilt in the best way it could." Wilson v. United States, 149 U.S. 60, 65-66, 13 S.Ct. 765, 37 L.Ed. 650 (1893).7 Jurors, however, are "not necessarily sensitive to the ... alternative explanations for a defendant's [previous] silence" and thus may draw an "unwarranted inference of guilt" resulting in a substantial risk of prejudice to a criminal defendant. Conyers, 52 N.Y.2d at 459, 438 N.Y.S.2d 741, 420 N.E.2d 933. See, also, Grunewald, 353 U.S. at 424, 77 S.Ct. 963. As the United States Supreme Court has recognized, "[t]oo many, even those who should be better advised, view [the Fifth Amendment] privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege." Id. at 421, 77 S.Ct. 963 (citation and quotation marks omitted). Accordingly, as Justice MCCORMACK notes, in this context, one jurisdiction has explained that, although cross-examining a defendant with his or her prior silence "`might not be unconstitutional, the constitutional context in which the privilege is initially asserted strips it of the evidentiary value it might otherwise be thought to have.'" Ante at 323, quoting Jones, 229 Pa.Super. at 245-246, 327 A.2d 638.8 Given that the evidentiary matter in this case presents "grave constitutional overtones," I generally find this rationale persuasive. Grunewald, 353 U.S. at 423, 77 S.Ct. 963.

In sum, although Raffel and the Fifth Amendment of the United States Constitution may permit impeachment with a defendant's prior silence in this context, a defendant's silence must still be admissible under the Michigan Rules of Evidence, including MRE 403.

VIVIANO, J., took no part in the decision of this case.