People v. Gearns

577 N.W.2d 422, 457 Mich. 170

• Court: Michigan Supreme Court
• Decided: May 5, 1998
• Docket: Docket Nos. 101206, 107834, Calendar Nos. 8-9
• Status: Published

Opinions

Brickley, J.

i

In these cases, we are called upon to determine three issues. First, whether any constitutional error occurred when the people called a witness to the stand knowing that the witness would assert the privilege against self-incrimination in front of the jury. Second, if this was not constitutional error, was it evidentiary error? Finally, if this was evidentiary error, we must decide the proper level of assurance a reviewing court must have for preserved nonconstitutional error. We conclude that no constitutional error occurred in either case and that, while evidentiary error did occur, it was harmless because it is highly probable that the evidence did not contribute to the verdicts in light of the strength and weight of the untainted evidence.

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A. PEOPLE v GEARNS

Defendant Jeffrey Geams was tried before a jury and convicted of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The Court of Appeals affirmed his conviction in an unpublished per curiam opinion.

On April 3, 1991, the defendant met the deceased, Douglas Lineberry, in the bar of a Chi-Chi’s restaurant in Dearborn. They conversed, and defendant became heavily intoxicated. The defendant, a regular at that bar, left with Mr. Lineberry. Later that evening, defendant called Gary Edwards, a friend of his, in Florida. Mr. Edwards testified that defendant sounded intoxicated and wanted him to play the flute over the speaker phone. Mr. Edwards testified that he heard another person in the background, who was laughing and “partying” and whom defendant stated he met at the bar. The next day, Mr. Edwards received another call from defendant asking him to recommend a good criminal attorney. When Mr. Edwards inquired regarding why, the defendant indicated that someone was shot and there was some kind of fatality. When Mr. Edwards called him back with the name of an attorney, defendant stated, “I guess I will see you in ten years.”

The victim’s wife reported him missing, and a ChiChi’s manager noticed a car in the parking lot for several days, which belonged to the victim. The victim’s body was discovered in a wooded area near Brighton with a single gunshot wound to the forehead. It was a 9 mm shell, shot from about four inches. The medical examiner testified that the deceased had been dead for approximately three to four days before the discovery of the body. In addition to the gunshot wound, there were abrasions on the sides of the neck and on the back of the hand of the deceased, and dried blood was found under his fingernails, which matched neither the deceased nor defendant. In the pocket of the deceased’s clothing was a Chi-Chi’s matchbook with defendant’s name and telephone number written on it.

A police sergeant called the number in the matchbook and left a message on an answering machine. When the defendant called back, the sergeant asked him if he knew Mr. Lineberry, to which defendant responded that he had not heard of him. The sergeant requested that the defendant come in for an interview; however, he did not.

On April 12, the police executed a search warrant at defendant’s home in Dearborn Heights. Defendant and his brother, Gregory Geams, were present, and one officer testified that defendant was on his hands and knees scrubbing the kitchen floor when he entered the home. One of the evidence technicians sprayed luminol on various areas of the home. She testified that it would glow in the dark when exposed to certain substances, including blood and a chlorine substance present in some household cleaners and certain metals. The test produced a glow on a puddle near defendant’s car in the garage and the pattern of a set of footprints in the comer of the basement. There also was a trace of denim material found in the trunk of the defendant’s car, but a positive match could not be obtained with the blue jeans worn by the victim. There was also positive presence of human blood on a trace of caipet, but it could not be typed.

The officers found 9 mm ammunition, the same caliber as the bullet that killed the deceased. Defendant was the registered owner of a 9 mm Smith & Wesson pistol, which was not found in the search. Some type O blood was found in the trunk, consistent with defendant’s blood type, and type A blood was found in the trunk, but no type B blood (the victim’s blood type) was found. Defendant’s father testified that defendant and Gregory Geams lived together at the Dearborn Heights address.

After the jury was sworn, the prosecutor asked for a ruling from the court outside the jury’s presence. The prosecutor wanted to call Gregory Geams as its first witness. Gregory Geams’ attorney indicated that he would assert the Fifth Amendment and refuse to answer questions. The prosecutor had offered Gregory Geams immunity from prosecution for a charge of accessory after the fact to murder, which the prosecution argued was sufficient to cover any information that the prosecutor knew or was likely to ever know concerning Gregory Geams’ involvement. The judge indicated that she would hold Gregory Geams in contempt if he refused to testify. His attorney indicated that he could not be held in contempt unless he actually refused to testify, and counsel for Gregory Geams requested that the refusal take place outside the jury’s presence. The prosecutor indicated his acquiescence, but the judge expressed her opinion that the refusal had to occur in front of the jury; otherwise, Gregory Geams would not be in contempt of court.

The jury was called in, and Gregory Gearns testified about the address at which he resided. When asked with whom he lived at that address, he stated that he was taking the Fifth Amendment. On request of the prosecutor, the judge instructed the witness that he had no valid privilege and must answer the question. Counsel for Gregory Gearns indicated that he believed the privilege was valid. The prosecutor asked the court to hold Gregory Gearns in contempt. Counsel for Gregory Gearns asked that the case be dismissed. The jury was excused. Defense counsel argued it was impossible that the prosecutor could have believed that Gregory Gearns was going to testify. The judge denied the motion because Gregory Gearns did not say anything detrimental about his client, and defense counsel was not counsel for Gregory Gearns, who did not say anything about defendant.

B. PEOPLE v THOMAS

Defendant Donnell Thomas was tried by a jury and convicted of voluntary manslaughter, MCL 750.321; MSA 28.553 (he was charged with second-degree murder), possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon,. MCL 750.227; MSA 28.424. The Court of Appeals reversed his conviction in an unpublished per curiam opinion. These charges arose from a shooting that occurred as several men were leaving a party on Park Street in Saginaw. The prosecutor’s theory was that Thomas shot and killed his friend, Curtis Madison, while trying to shoot members of a rival gang.

Thomas and five other friends, Curtis Madison, Tarkeus Gee, Robert Jamerson, Demarcus Wesby, and Terry King left the party around 9:30 P.M. with two others. A pickup truck heading north on Park Street drove by, and the occupants fired shots at the group. Mr. Madison and Mr. King were already in Mr. Madison’s car. Mr. Jamerson and defendant returned gunfire — Mr. Jamerson from a .38 caliber revolver and defendant from a 9 mm semiautomatic pistol. Defendant and Mr. Jamerson left before the police arrived.

A 9 mm bullet was recovered from Mr. Madison, the victim. Its entry indicated it did not come from the road where the truck occupants fired shots. The expert’s laser trajectory indicated defendant was in a position consistent with the line of fire, although it could also have come from a building. The 9 mm pistol was not recovered. Mr. King indicated that defendant was firing at the blue track in their direction. Defendant offered a statement indicating that Mr. Wesby also fired shots. There was additional testimony that shots might have been fired from a nearby building. Thomas’ theory was that the prosecutor failed to prove that he was the killer beyond a reasonable doubt and that, even if the jury believed he fired the shot, it was not murder.

The prosecutor and the police went to interview Mr. Gee in jail before trial, and Mr. Gee indicated that he had no intention of testifying. Mr. Gee also said there was nothing anyone could do to make him testify. The prosecutor requested that the court compel him to take the stand. The court asked Mr. Gee why he was refusing — if he was going to assert the Fifth Amendment privilege. The prosecutor agreed to grant immunity. The prosecutor and the court agreed that if Mr. Gee still refused to testify, the prosecutor would have the right to call him. The defense maintained that to call him would be unfairly prejudicial to defendant.

Mr. Gee took the stand and stated that he did not want to testify, but did not give a reason. The trial court asked if he was refusing to testify because of the Fifth Amendment. Mr. Gee responded, “Yeah, I’m refusing on the Fifth Amendment. Is it more simple that way?” The trial court ruled that Mr. Gee had no Fifth Amendment privilege. Defendant’s attorney objected that Mr. Gee had not been properly informed of the scope of his Fifth Amendment rights. The trial court then informed him that “the only person who has a legal right not to testify and to invoke the Fifth Amendment is an individual who believes that he or she may implicate themselves, maybe testify against their own penal interests.” Mr. Gee indicated that he just did not want to testify, and the prosecutor’s threats to add to his charges and give him a longer sentence did not bother him. He also stated that he had done nothing wrong and, thus, could not implicate himself.

Defense counsel argued that it was not permissible to place Mr. Gee on the stand in front of the jury to elicit a refusal to testify, even if the privilege asserted was invalid. The court permitted it over objection, stating that the witness’ refusal would be placed on the record before the jury. Mr. Gee would not even testify with regard to his name, stating, “I’m making sure — I want — I’m refusing to say anything until I get a legal representative.” He was subsequently held in contempt. Following his statement on the stand, Mr. Gee was provided with counsel, who concluded that Mr. Gee had no legal right not to testify.

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The first issue we are called upon to decide is whether either defendant’s right to confront a witness against him was implicated by permitting a witness to assert his Fifth Amendment privilege against self-incrimination in the presence of the jury. While our decision in People v Giacalone, 399 Mich 642, 646; 250 NW2d 492 (1977), was based on evidentiary error, we recognized that a number of other decisions were based on the Confrontation Clause. We declined to reach the constitutional issue in that case, but find it necessary and prudent to do so today. We conclude that neither defendant was denied the right of confrontation or the right to a fair trial in violation of due process.

We first address the alleged violations of the Confrontation Clause. Three United States Supreme Court decisions form the backdrop against which we determine this issue. The first is Namet v United States, 373 US 179, 185; 83 S Ct 1151; 10 L Ed 2d 278 (1963), in which the Supreme Court held that the petitioner’s claim was evidentiary trial error, specifically noting that no constitutional issue was being decided. While we are not bound by this Supreme Court decision, it proves instructive in determining at what point this type of error becomes constitutional in magnitude.

In Namet, two coconspirators testified against the defendant and invoked the Fifth Amendment during portions of their testimony. The Supreme Court examined several lower court decisions regarding this type of error, in which those courts reviewed surrounding circumstances of each case, focusing primarily on two factors, each of which suggested a “distinct ground of error.” Id. at 186. The first theory¹ rests on the conclusion that in the circumstances of a particular case, “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Id. at 187.

Both witnesses possessed nonprivileged information that could be used to corroborate the government’s case, which the government had the right to put before the jury. Id. at 188. The few invocations of the privilege were not significant enough to be error in the absence of prosecutorial misconduct and were merely cumulative support for inferences already established by the nonprivileged portion of the witness’ testimony. Id. at 189. This case is factually different from the two cases we are examining here today and only serves to illustrate when no constitutional error exists.

The second decision, Douglas v Alabama, 380 US 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965), is not inconsistent with Namet, but does rest on constitutional grounds. Douglas illustrates when the first ground for error discussed in Namet, critical weight, becomes constitutional in nature. In Douglas, the trial judge ruled that the witness could not rely on the privilege against self-incrimination to support his refusal to testify because he had been convicted.² He was ordered to answer, but persisted in his refusal. The prosecutor produced a document purported to be the witness’ confession and read from the document, asking the witness every few lines whether he had made that statement, until the entire document was read to the jury. Id. at 416-417.

The Supreme Court held that, in the circumstances of that case, the petitioner’s inability to cross-examine the witness about the alleged confession denied him the right of cross-examination secured by the Confrontation Clause. The statements read by the prosecutor formed a “crucial link” in the proof against petitioner and were the “equivalent ... of testimony” that the witness made the statements. Id. at 419. Effective confrontation of the witness was possible only if the witness affirmed the purported confession as his. He did not and, instead, relied on his privilege to refuse to answer. Id. at 420. The Court held that this was not a “mere minor lapse” like Namet, and that the statements were a fundamental part of the government’s case against the petitioner. The circumstances were such that inferences from the refusal to answer added “critical weight” to the prosecution’s case in a form not subject to cross-examination, thus unfairly prejudicing the petitioner. Id. at 420.

A third Supreme Court decision, Frazier v Cupp, 394 US 731; 89 S Ct 1420; 22 L Ed 2d 684 (1969), further explores the ground of error articulated in Namet that was utilized in the Confrontation Clause analysis of Douglas. The petitioner argued that the prosecutor made remarks in his opening statement that prejudiced him. The petitioner had been indicted jointly with his cousin, who pleaded guilty of the same offense. The petitioner’s defense counsel told the prosecutor that the cousin would invoke his Fifth Amendment privilege if called to the stand and warned the prosecutor not to rely on his testimony in his opening statement. The prosecutor independently investigated the matter and believed, on the basis of questioning the cousin’s probation officer, a police officer who had spoken with the cousin, and some relatives that the cousin indeed would testify. Id. at 733.

Because of that investigation, the prosecutor included a summary of the cousin’s expected testimony in his opening statement. When called to the stand, the cousin indicated that he would assert his privilege against self-incrimination regarding any question related to activities in question. The matter was not further pursued and he was dismissed from the stand. Id. at 734. The petitioner argued that the substance of his cousin’s statement was placed before the jury as the equivalent of testimony not subject to cross-examination and added substantial weight to the prosecution’s case. Id. at 734.

The Supreme Court considered whether the petitioner was denied his confrontation rights as guaranteed by the Sixth and Fourteenth Amendments.³ Although the “question . . . posed [was] not an easy one,” the Supreme Court disagreed with the petitioner. Id. at 734-735. Unlike Douglas, the witness was on the stand for a short period, only a paraphrase of the statement was put in front of the jury, and it was not done while the witness was on the stand. Moreover, the statement was not vitally important to the prosecution’s case. Under these circumstances, the instruction to the jury that counsel’s statements were not evidence was sufficient to protect the petitioner’s constitutional rights. Id. at 735. The crux of Frazier is that an inference was not likely to be drawn because of the separation of the opening statement, which only paraphrased the expected testimony, from the questioning of the witness.⁴

The instant cases are unlike Douglas, where a purported confession of a codefendant was placed before the jury through the prosecutor’s questions, to each of which the witness asserted the Fifth Amendment privilege.⁵ No statements or other evidence was presented to the jury that was the “equivalent ... of testimony.” In Namet, the witnesses offered much other substantive testimony apart from their assertions of the Fifth Amendment to a few questions. The defendant was able to cross-examine the witnesses about the substance of the testimony that was actually put before the jury. Here, there was no substance on which the defendants could cross-examine the witnesses.

In Frazier, substantive proposed testimony was put before the jury in the prosecutor’s opening statement. However, because of the separation of the opening statement from the witness’ refusal to testify on the stand, the fact that the proposed testimony was not critical, and because of the general limiting instruction,⁶ this was held not to be constitutional error.

The present cases are most like Frazier. In fact, they are far less close to constitutional error than the facts in Frazier. No substantive testimony was placed before the jury. In particular, we note the absence of any claim in Frazier that merely placing the witness on the stand and having the witness assert Fifth Amendment rights was, by itself, constitutional error. The Supreme Court found no constitutional error in circumstances similar to the present circumstances, even with the additional aggravating factor of putting proposed substantive testimony before the jury in an opening statement.

We would hold that in both Geams and Thomas no Confrontation Clause violation occurred. A defendant has the constitutional right to confront witnesses against him, primarily secured by the right to cross-examination. See Douglas, supra at 418. In the instant cases, there was no testimony given by the witnesses on which the defendants could have cross-examined them. In Geams, the witness was asked one question, to which he responded by asserting his Fifth Amendment privilege. That he lived with his brother was subsequently established by the prosecution, and, thus, this only supported a fact already established by other testimony. See Namet, supra. The prosecution subsequently asked Gregory Geams if he had been granted immunity, to which he responded affirmatively. In Thomas, the witness was also asked one question, to which he articulated his refusal to testify and his desire for a “legal representative.” In neither case was any substantive evidence, in the form of testimony or its equivalent, placed before the jury.

Our position is supported by the general Confrontation Clause jurisprudence of the United States Supreme Court. First, the principal protection provided by the Confrontation Clause to a criminal defendant is the right to conduct cross-examination. Pennsylvania v Ritchie, 480 US 39, 51; 107 S Ct 989; 94 L Ed 2d 40 (1987); Delaware v Fensterer, 474 US 15, 18-19; 106 S Ct 292; 88 L Ed 2d 15 (1985). Moreover, the Confrontation Clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Fensterer, supra at 20; Ritchie, supra at 53; People v Bushard, 444 Mich 384, 391; 508 NW2d 745 (1993) (emphasis in original). Finally,

[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony. [Fensterer, supra at 21-22; United States v Owens, 484 US 554, 558; 108 S Ct 838; 98 L Ed 2d 951 (1988) (emphasis added).]

Implicit in the Supreme Court’s Confrontation Clause jurisprudence is that a witness must put forth some testimony before the defendant’s right of confrontation comes into play. A defendant has no right to confront a witness who does not provide any evidence at trial. People v Scheidt, 182 Colo 374, 384; 513 P2d 446 (1973), citing United States ex rel Meadows v New York, 426 F2d 1176 (CA 2, 1970). A mere inference is simply insufficient for a Confrontation Clause violation.

The core of the Douglas decision was that the “equivalent ... of testimony” was placed before the jury. While the “critical weight” theory is articulated in terms of “inferences,” we must emphasize that it also requires these inferences to be a form “not subject to cross-examination.” A defendant is only guaranteed an opportunity for cross-examination; however, there must first be something of substance to cross-examine. We agree with the Colorado Supreme Court that, where a witness does not testify about matters beyond preliminary information, i.e., matters that have no bearing on the outcome of the case, there is nothing for the defendant to cross-examine, and the policies underlying this constitutional right do not come into play. Scheldt, supra at 384. Thus, before a defendant can be denied effective cross-examination, some substantive testimony or its equivalent must come to pass in order for the right to confrontation to arise.

We now turn to the second possible ground for constitutional error articulated in Namet,7 which implicates due process. The second theory is based on a concept of prosecutorial misconduct, where the government makes a “conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Id. at 186. The Namet Court found significant that the first witness invoked the privilege with regard to one question and the other only with regard to four questions. These few lapses, viewed in the context of the entire trial, did not amount to a deliberate attempt by the government to “make capital” out of the refusals to testify. Id. at 189. Thus, prosecutorial misconduct as a ground for evidentiary error was not satisfied.⁸

The Supreme Court has not definitively addressed whether prosecutorial misconduct can violate a defendant’s constitutional rights in this context. However, the “touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v Phillips, 455 US 209, 219; 102 S Ct 940; 71 L Ed 2d 78 (1982). This Court has also repeatedly articulated the principle that, in reviewing claims of prosecutorial misconduct, it must be determined whether the conduct rose to such a level as to deny the defendant a fair trial. People v Bahoda, 448 Mich 261, 267; 531 NW2d 659 (1995), People v Allen, 351 Mich 535; 88 NW2d 433 (1958), and People v Hammond, 394 Mich 627; 232 NW2d 174 (1975). Thus, the “Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v Van Arsdall, 475 US 673, 681; 106 S Ct 1431; 89 L Ed 2d 674 (1986); People v Reed, 449 Mich 375; 535 NW2d 496 (1995).

The Supreme Court declined to address this issue in Frazier,⁹ but did not rule out that prosecutorial misconduct in this context can result in a constitutional violation. The prosecutorial misconduct in this situation, thus, should be analyzed just as any claim of alleged prosecutorial misconduct. Utilizing the Supreme Court’s due process analysis for prosecutorial misconduct, the issue then becomes whether the conduct rose to such a level as to deny the defendant a fair trial in violation of due process. The Supreme Court held that the proper inquiry is not the fact of the prosecutor’s misconduct, but, rather, its effect on the trial. Smith, supra at 220. Thus, prosecutorial misconduct alone does not require a new trial. Id.

We also find it helpful to turn to cases from our sister states, which have grappled with the issue of prosecutorial misconduct in this context. The Arizona Supreme Court decided whether a defendant was denied the right to due process and a fair trial in State v Corrales, 138 Ariz 583; 676 P2d 615 (1983).¹⁰ First, the court held that merely calling a witness to the stand and procuring his invocation of the privilege is not a violation of either prong of the Namet rule. Id. at 589. However, after the witness’ assertion of Fifth Amendment rights, at which time the prosecutor had determined that the witness would do so despite the court’s ruling that it was not available, the proper procedure would have been to so instruct the witness and determine whether he would obey the instructions. Id. If the prosecutor found that the witness would follow his attorney’s instructions and refuse to testify, rather than the court order, then the witness could be withdrawn and “no serious harm would have occurred.” Id.

However, in Corrales, the prosecutor continued questioning the witness and asked leading questions that connected the defendant to the witness in the commission of the crime. Id. at 590. Moreover,

[t]he fact that it was permissible to call [the witness] to ascertain whether he would take the fifth amendment did not make it permissible to continue asking him questions after it had become apparent that he would take that privilege. The law is quite to the contrary. Prosecutorial insistence in asking prejudicial questions depicting a defendant’s involvement in the crime after it becomes clear that the witness-alleged accomplice has refused and will continue to refuse to testify is an attempt to build the prosecutor’s case out of inferences arising from use of the testimonial privilege and is misconduct. [Id. at 591 (citations omitted).]

The instant cases stand in stark contrast to Corrales. We have no “[p]rosecutoiial insistence in asking prejudicial questions depicting a defendant’s involvement in the crime . . . Once the initial assertions of the privilege occurred, both prosecutors ceased questioning the witnesses. Gregory Geams was asked if he had been granted immunity; however, that still did not depict defendant’s involvement in the crime. Thus, the prosecutors in these cases did not attempt to build their cases on inferences drawn from a witness’ assertion of the testimonial privilege.

In deciding that no prosecutorial misconduct occurred, the Massachusetts Supreme Judicial Court found that because the prosecutor only questioned the witness¹¹ once, included no “facts” in the form of leading questions, and made no comment about the witness’ recalcitrance in his closing argument, there was no showing that the prosecution consciously sought to build its case out of inferences arising from the witness’ silence. Commonwealth v Kane, 388 Mass 128, 138; 445 NE2d 598 (1983). The present cases fall within the requirements of Kane. While in Geams, the prosecution’s mention of the grant of immunity was probably not the most prudent course of action, it still does not rise to the level of building its entire case from inferences arising from the refusal to testify.

The Delaware Supreme Court found neither a due process nor a Confrontation Clause violation where the witness waived his Fifth Amendment right, the state was entitled to call the witness because his previous testimony implicated the defendant, the record did not establish that the witness would refuse to give any testimony, the witness answered preliminary questions before asserting Fifth Amendment rights, and the state’s questioning of the witness that prompted the refusal was directed solely at the witness’ role in the crime, not the defendant’s. McBride v State, 477 A2d 174, 186 (Del, 1984).

In the instant cases, the only factor arguably satisfied is that it was well established that the witnesses would refuse to testify. However, this is simply not enough to constitute a due process violation, denying either defendant a fair trial. This is so in light of the Supreme Court’s admonition that prosecutorial misconduct alone is insufficient for the grant of a new trial (see Smith, supra) and that merely calling a witness to the stand, even knowing that he will assert Fifth Amendment rights, does not rise to the level of constitutional violation. See Corrales, supra.

This analysis is supported by the Wisconsin Supreme Court, which made an important distinction between cases finding prejudicial error and those that did not by holding that the controlling factor was not that prosecution called the witness to the stand, but rather that it put questions to the witness, which if not answered, would lead to the inference that the answers, if given, would be unfavorable to the defendant. Price v State, 37 Wis 2d 117, 125; 154 NW2d 222 (1967).¹² Thus, calling a witness to the stand, even if the prosecutor knows that the witness will assert Fifth Amendment rights, does not, by itself, deny a defendant a fair trial or due process of law. Namet and its constitutional progeny require far more to establish a conscious and flagrant attempt to build a prosecution case from inferences arising from assertions of testimonial privilege.

IV

Because we have concluded that no constitutional error occurred in these cases, we must now determine whether evidentiary error occurred. We conclude that in both cases evidentiary error did occur. This Court’s decision in Giacalone, supra, forms the foundation of this evidentiary error analysis. In Giacalone, the defendant and two others were charged with armed robbery. One, Jolly, was tried separately and convicted. Jolly’s attorney advised the judge and other counsel that Jolly would assert his Fifth Amendment privilege and refuse to testify. The prosecution called him to the stand and asked two questions, to which he responded by asserting his Fifth Amendment privilege. Id. at 644. This Court held on the basis of an ethical rule of conduct¹³ that an attorney may not call a witness knowing that he will claim a valid privilege not to testify. We recognized that when an

“alleged accomplice invokes the privilege in the presence of the jury, prejudice arises from the human tendency to treat the claim of privilege as a confession of crime, creating an adverse inference which an accused is powerless to combat by cross-examination.” [Id. at 645, quoting State v Allen, 224 NW2d 237, 241 (Iowa, 1974).]

We again addressed this issue in People v Dyer, 425 Mich 572; 390 NW2d 645 (1986), in which the defendant wanted to put a witness on the stand solely to have him assert his Fifth Amendment privilege in front of the jury in order to support his defense that someone else (the witness) committed the crime. This Court, in reversing the Court of Appeals, explained that the Giacalone rule applied to the defense as well as the prosecution. Id. at 581. The witness in Dyer was neither an accomplice nor a codefendant. Id. at 578. However, this Court agreed that answering any questions regarding the evening of the defendant’s arrest or the witness’ presence at the scene of the crime might have tended to incriminate the witness. Id. at 579.

The prosecution in Thomas takes issue with the Court of Appeals holding that “inherent prejudice” results when an individual who is connected to the criminal episode or to the defendant invokes his Fifth Amendment privilege in front of the jury. The prosecution also contends that Court of Appeals decisions have eroded this Court’s requirement that a valid privilege be asserted. While the prosecution agrees that invalid assertions of privilege may be as prejudicial as valid assertions, it does not follow that the validity of the privilege has no bearing at all. The invalidity creates a real possibility that the witness may have a change of mind; it is relevant to the prosecutor’s good faith.

Defendant Thomas responds by explaining that Mr. Gee repeatedly refused to testify and neither immunity nor contempt changed his mind. There is no indication that the prosecutor thought Mr. Gee would change his mind and testify, nor was there any evidence to suggest that he would. If the prosecutor needs to explain the absence of a witness, that should be cured by an instruction, not by putting the witness on the stand to refuse to testify.

The prosecution in Gearns maintains that it was not certain that Gregory Gearns would assert his Fifth Amendment rights because he had been advised by his attorney that he must testify and because of his attorney’s assertion that he could not be held in contempt until he was called to the stand and asserted Fifth Amendment rights before the jury.¹⁴

The people are correct that Giacalone and Dyer speak in terms of a valid privilege, although this was not directly at issue in either case. The Court of Appeals has expanded on Giacalone, and the prosecutors in these cases urge this Court to reverse that trend. In People v Poma, 96 Mich App 726, 731; 294 NW2d 221 (1980), the Court of Appeals held that the validity of a witness’ privilege has no bearing on the prejudice to the defendant that results when an “intimately connected” witness asserts Fifth Amendment rights on the stand. The Court of Appeals also outlined certain procedures that must be followed:

The court should first hold a hearing outside the jury’s presence to determine if the intimate witness has a legitimate privilege .... This determination should be prefaced by an adequate explanation of the self-incrimination privilege so the witness can make a knowledgeable choice regarding assertion. . . .

If the court concludes that the witness has no legitimate privilege, it should consider contempt penalties or other alternate remedies against the witness. Yet, with respect to the defendant, the court must proceed to determine if the witness intends to assert that privilege, whether validly or invalidly, at trial. If the intimate witness intends to claim the protection of the Fifth Amendment at trial, there really is no way to prevent prejudice to the defendant absent barring that witness.

We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand. [Id. at 732-733 (citations omitted).]

On the basis of our precedent, we must first determine how the witness’ status as an “intimate witness” affects the inquiry. Next, we must determine whether the validity of the privilege is controlling in this analysis. Third, we will discuss the procedures outlined by the Court of Appeals in Poma. Finally, we will address whether any limiting instructions are necessary in these cases.

Dyer and Giacalone stand for the proposition that it is an ethical violation for an attorney to put a witness on the stand knowing that the witness will validly assert the Fifth Amendment. However, where the possible prejudice comes into play is when the witness is an accomplice or codefendant or, as in Dyer, is intimately connected to the crime, although neither as an accomplice nor as a codefendant. Obviously, for there even to be possible prejudice to the defendant, the witness must be substantially related to the criminal episode at issue.

While the requirement of a witness’ status as an “intimate witness” is not usually a contested issue, the Pennsylvania Supreme Court clearly articulated this requirement when it held that

the prosecution, once informed that a witness intends to claim a privilege against self-incrimination, commits error in calling that witness to the stand before the jury where the witness is a person (co-defendant, accomplice, associate, etc.) likely to be thought by the jury to be associated with the defendant in the incident or transaction out of which the criminal charges arose. [Commonwealth v DuVal, 453 Pa 205, 217; 307 A2d 229 (1973).]

The people in both cases argue that the witnesses were not accomplices. However, the witness in Dyer was neither an accomplice nor a codefendant, but was simply present at the scene of the crime. Mr. Gee was also present at the scene of the crime in circumstances similar to those presented in Dyer. Gregory Gearns was obviously intimately involved in the criminal episode because he had been granted immunity as an accessory after the fact. Without this critical element, the possible prejudice to the defendant does not exist.

Next, we agree that the validity of the privilege is not necessarily controlling in this evidentiary error analysis. While this issue first became jurisprudentially significant in the context of valid assertions of testimonial privileges, the validity of the privilege does not address the central issue at hand. If the concern is the possible prejudice to the defendant, then why focus on the validity of the witness’ constitutional rights? While the key difference between the constitutional error analyses above and the evidentiary error analysis is the good faith or knowledge of the prosecutor,¹⁵ we do not believe that the validity of the privilege as determined by the trial court is absolutely controlling in determining whether the prosecutor acted in good faith.¹⁶

Giacalone did emphasize both the validity of the privilege and that an accomplice was invoking it. However, we also noted that evidence is traditionally excluded where effective cross-examination is difficult to obtain, such as hearsay. Id. at 646, n 6. Under this basis for our holding, the validity of the privilege does not appear controlling. Moreover, the validity or invalidity of the privilege does not focus on the real issues: Does the prosecutor know that the witness will refuse to testify and will the defendant suffer possible prejudice? Merely because the privilege may be invalid does not negate the prosecutor’s knowledge or satisfy his ethical responsibility under Giacalone. Moreover, the invalidity of the privilege does not rebut the possibility of prejudice to a defendant.

Other jurisdictions have decided this issue and the courts are split. The Pennsylvania Supreme Court expressed its disagreement with courts holding that the privilege must be valid:

We disagree with those jurisdictions in which it is held that the prosecution may with impunity call before the jury a witness likely to be associated with the defendant in the minds of the jurors, knowing that a privilege against self-incrimination will be claimed and yet believing that the claim of privilege will be legally invalid. [DuVal, supra at 216.]

The court noted that it was probably even more prejudicial to a defendant to observe a recalcitrant witness electing to remain silent, notwithstanding a court order to testify. Id. at 217. Requiring the privilege to be valid may seem like a simple bright-line rule; however, it does not address that the source of the error lies in the prosecutor knowingly putting a witness on the stand who is going to assert a privilege, not in whether a witness is properly exercising a testimonial privilege.

The dissent asserts that if the trial court finds the witness’ privilege invalid, the prosecution has every right to put the witness on the stand, expecting the witness to comply with the obligation to testify. Thus, contrary to our conclusion, the dissent would hold that the ruling of the trial court does indeed negate the prosecutor’s knowledge.¹⁷ We fail to see how a prosecutor, in good faith, can believe that a witness who is willing to face possible criminal contempt charges and confinement when questioned in the presence of the trial judge, will suddenly have a change of heart and be less willing to face those same possible charges when faced with the jury.

In Geams, the witness’ attorney repeatedly advised the trial court that he believed Gregory Geams had a valid privilege and that the scope of the immunity grant was not sufficient. He indicated that his client would not testify. We fail to see how a prosecutor, in good faith, can believe that a witness will not heed the advice of his own counsel and suddenly become willing to testify merely because the jury enters the courtroom. In Thomas, the witness could not have made it more clear that he would not be testifying, even when faced with threats of additional prison time and after being granted immunity. The prosecutors had no reasonable expectation that these witnesses would testify. Therefore, the only reason to put such a witness on the stand was for the jury to see each witness assert his privilege. The impermissible inference is no less present when the privilege might be invalid. Moreover, the dissent would presumably permit a defendant to also place a witness on the stand whose privilege is deemed invalid by the trial court, obviously seeking the same inference we held impermissible in Dyer. We conclude that, in these cases, it was not reasonable for the prosecutors to believe that the witnesses would testify. Thus, the prosecutors committed the same misconduct we deemed evidentiary error in Giacalone and Dyer because they were armed with the knowledge that the witnesses would claim a privilege, in spite of the trial courts’ rulings that their privileges were invalid.

Additionally, compliance with the procedures outlined in Poma is really quite simple — the intimate witness must be given an opportunity to testify or assert his privilege outside the jury’s presence. The prosecution then has the information it needs to decide whether to request an instruction regarding the absence of the witness, Dyer, supra, and the defendant is not prejudiced by any possible adverse inference. This procedure protects the concerns and rights of both the people and the defendant.

Moreover, other courts have utilized procedures similar to those outlined in Poma. The DuVal court also noted what a “simple” procedure it was for the prosecutor to inform the court that a witness he intends to call will assert Fifth Amendment rights and obtain a ruling on the matter. DuVal, supra at 216; see also Allen, supra at 224 NW2d 241. Furthermore, the matter should be treated without the presence of the jury, and, if the court determines that the privilege is not valid, it should be determined outside the jury’s presence whether the witness will continue to refuse to testify. If the witness does refuse, contempt of court and removal should also take place outside the jury’s presence. DuVal, supra at 217.

Thus, the judge must hold a hearing outside the jury’s presence to determine if the witness’ privilege is valid, explaining the privilege to the witness. If the court concludes the privilege is not valid, it must determine whether the witness intends to proceed with asserting an invalid privilege. If the witness does so intend, then the witness may not be called. We agree that compliance with these procedures is simple indeed and protects the defendant while giving the prosecutor an important opportunity to “coax” a reluctant witness to testify.

Finally, we address the necessity of limiting instructions. We noted in Dyer that, where a party does not produce or call a codefendant or a witness to substantiate a claim of innocence or guilt, the jury may draw an adverse inference from the absence of this evidence. A neutralizing instruction explains to the jurors that they may not draw an inference from the absence of certain witnesses or engage in speculation about the possible nature of their testimony. Such an instruction, while not mandatory, should be given when requested to avoid prejudice. Dyer, swpra at 582-583.

It is clear that a limiting instruction should be used to explain the absence of a witness, if necessary. A defendant may also request an instruction that no adverse inference should be drawn from a witness’ assertion of a testimonial privilege, should that occur in front of the jury. However, a defendant, in particular, may not want to request such an instruction, thereby calling attention to the witness’ assertion of the privilege, just as the prosecution may not wish to request an instruction regarding a witness’ absence and, thus, call attention to that fact. Requesting either instruction is in the discretion of the trial attorney and is relevant to trial strategy. In sum, we would reaffirm our holdings in Giacalone and Dyer. It was error for the prosecutors in the cases at bar to call witnesses intimately connected to the crimes at issue, knowing those witnesses would assert their Fifth Amendment rights, validly or invalidly.

v

A

We now turn to the third issue that we must decide. This is the issue we recently left open in People v Mateo, 453 Mich 203; 551 NW2d 891 (1996), that is, what “level of assurance” a reviewing court must have for preserved nonconstitutional error under Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946). We would adopt the highly probable standard as articulated in Mateo. While we find that evidentiary error occurred in both cases before us, we would hold that the people have proved that it was highly probable that, in the light of the strength and weight of the untainted evidence, the tainted evidence did not contribute to the verdicts.

The prosecution asserts that, but for the language of MCL 769.26; MSA 28.1096, that reversal cannot occur unless it shall affirmatively appear that the challenged error has resulted in a miscarriage of justice, we could define the term “miscarriage of justice” differently when different contexts are presented, such as where the error is unpreserved, by placing the burden of persuasion on the defendant, and where the error is preserved, as in Kotteakos, by placing the burden of persuasion on the prosecution. But, the prosecution contends that this language could only be interpreted as placing the burden of persuasion on the defendant, thus requiring the defendant to show by a preponderance of the evidence that the error during trial did have a substantial and injurious effect or influence on the jury’s verdict.

The prosecution also argues that the “level of assurance” discussion in Mateo seems “mistaken”: in the federal system the burden is on the government to demonstrate that nonconstitutional error did not have a substantial and injurious effect or influence on the jury’s verdict, leading to adoption of either the preponderance of the evidence or the highly probable standards, but in Michigan, MCL 769.26; MSA 28.1096 places the burden on the defendant to overcome the presumption that the error was not prejudicial.

Both defendants advocate the highly probable standard discussed in Mateo. There, we left open the level of confidence the reviewing court must have in the harmlessness of preserved error. However, this Court did note that the highly probable test may represent the appropriate test. Id. at 207. Furthermore,

[s]imply stated, and employed in both federal rule and case law and state statute and court rule, reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence. [Id. at 215.]

This Court seemingly approved former Chief Justice Traynor’s position that the highly probable test, which assesses whether it is highly probable that the challenged evidence did not contribute to the verdict, is the most appropriate. Id. at 219. Justice Traynor suggested that the highly probable test strikes the appropriate balance between protecting both the public’s and defendants’ interests in fair trials. Id. at 220.

We disagree with the prosecution that MCL 769.26; MSA 28.1096 places the burden of persuasion on the defendant for preserved nonconstitutional error. This Court held in Mateo that the statute does not impinge on this Court’s authority to determine practice and procedure, does not require a literal definition of miscarriage of justice, and is consistent with Kotteakos. Mateo at 206. Thus, now that we have received the appropriate assistance from the bench and bar that was lacking in Mateo, we adopt the highly probable standard.

B

We must now decide whether the people in these cases have proved that it was highly probable that the errors did not contribute to the verdicts. Defendant Thomas argues that Mr. Gee’s silence did invite improper inferences and, thus, that the prosecution has not proved that it was highly probable that the error did not contribute to the verdict. The prosecution’s theory of the case related to a “gang war” of sorts. Mr. Gee’s silence implicated defendant by permitting the inference that gang members are honor-bound not to turn against one another. Mr. Gee’s adherence to the code of silence strongly suggested the defendant’s guilt.

Defendant Geams also argues that the prosecution did not prove that it is highly probable that the error did not contribute to the verdict because, while the question asked of Gregory Geams might appear innocuous, the significance of the address was not innocuous in the circumstances of this case. The prosecution was careful to develop the fact that Gregory Geams lived with defendant from other witnesses and that the address was the last place the deceased was seen or heard alive. The prosecution further made a tremendous effort to establish the residence as the scene of the shooting. It also established Gregory Geams’ presence during the execution of the search warrant. Furthermore, it exploited the error by asking twice, over defense objection, whether Gregory Geams had been served with an order of immunity.

Circumstantial evidence primarily comprised the cases against both defendants. However, not only was the circumstantial evidence, as a whole, strong, the physical evidence connecting defendant Geams to the crime was substantial. We find the error to be harmless in the light of the strength and weight of the untainted evidence. In Thomas, the evidence was also circumstantial; however, strong evidence was presented placing defendant Thomas at the scene of the crime and establishing him as the shooter. Moreover, Mr. Gee asserted that he did not do anything wrong, thus negating somewhat any adverse inference that resulted from his refusal to testify. We also find this error to be harmless in the light of the strength and weight of the untainted evidence. In both Gearns and Thomas, we would hold that the people have proved that it was highly probable that the tainted evidence did not contribute to the verdicts. Thus, neither defendant was unfairly prejudiced by the evidentiary error that occurred at trial.

VI

In both cases before us, we hold that no constitutional error occurred and that, while evidentiary error did occur in both cases, it is highly probable that the errors did not contribute to the verdicts in the light of the strength and weight of the untainted evidence. We, therefore, would affirm the Court of Appeals decision in People v Gearns and would reverse the Court of Appeals decision in People v Thomas.

Mallett, C.J., concurred with Brickley, J.

1 The second is “based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Id. at 186. This ground of error will be addressed below.

2 We note that while Namet implied that a valid privilege is required for an evidentiary error, the Douglas Court found it unnecessary to decide whether the witness properly invoked the privilege. It was sufficient in order to determine the Confrontation Clause claim that no suggestion was made that the witness’ refusal to answer was procured by the defendant. Id. at 420. Thus, the validity of the privilege is not a prerequisite to the finding of a Confrontation Clause violation.

3 The Supreme Court did hold, in Frazier, that a prosecutor’s good faith, or lack of it, is not controlling in determining whether a defendant has been deprived of the right of confrontation guaranteed by the Sixth and Fourteenth Amendments. Id. at 736.

4 Frazier left open the issue whether, under different circumstances, such an instruction would still be sufficient to protect a defendant’s constitutional rights.

5 The confession was inadmissible under that state’s rules of evidence. Id. at 418.

6 Because we find no confrontation violation, whether a general or specific limiting instruction would have cured this type of constitutional error need not be addressed.

7 Again, we emphasize that the Court in Namet specifically declined to address any constitutional issue, and the holdings therein were based on an evidentiary error analysis.

8 We note some overlapping in the Confrontation Clause and prosecutorial misconduct analyses. While the two grounds articulated in Namet present “distinct grounds of error,” often it is difficult to distinguish, factually, between a “conscious and flagrant attempt to build a case out of inferences arising from use of the testimonial privilege” and where such assertions of the privilege add “critical weight” to the prosecution’s case. It is important to note a critical difference in the analysis of the two issues. The focus of the prejudice inquiry in determining whether a defendant’s confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial. Delaware v Van Arsdall, 475 US 673, 680; 106 S Ct 1431; 89 L Ed 2d 674 (1986). This type of error is then subject to the harmless error analysis. Id. at 684. In contrast, the focus of any prosecutorial misconduct claim is the fairness of the entire trial; in other words, the outcome of the trial is the focus. See Smith v Phillips, 455 US 209; 102 S Ct 940; 71 L Ed 2d 78 (1982).

9 Because it agreed that the state reasonably could have expected the witness to testify in accordance with previous statements, it found no need to decide whether the fype of prosecutorial misconduct alleged to have occurred in Frazier would have been sufficient to constitute constitutional error requiring reversal. Frazier, supra at 737.

10 The court found that both prongs of Namet were violated and found both a due process/fair trial violation because of prosecutorial misconduct and a Confrontation Clause violation. Corrales, supra at 590 and 595.

11 This case involved the priest-penitent privilege, not the privilege against seK-incrimination. However, the court used the Namet analysis.

12 While this court was deciding a Confrontation Clause claim, we also find this distinction important in the due process analysis.

13 “A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify.” Giacalone at 645, citing the ABA Project on Standards for Criminal Justice.

14 Jeffrey Gearns’ attorney specifically requested that this procedure take place outside the presence of the jury.

15 As the Supreme Court noted in Frazier, supra, a prosecutor’s good faith is not controlling in a confrontation analysis. Moreover, the fairness of the trial is central to a due process analysis, not the culpability of the prosecutor. See Smith, supra.

16 The United States Supreme Court held, in the constitutional context, that it was unnecessary to decide if the privilege was valid because the refusal to testify was not procured by the defendant. Douglas, supra at 420. We note that this is also relevant in the evidentiary error analysis, and no evidence was presented in these cases that either defendant “procured” the refusal to testify.

17 Moreover, does a witness really have an obligation to testify if the trial court has erroneously determined the validity of his privilege? In this vein, we note another difficulty with the dissent’s analysis. It certainly raises concerns about the trial judge’s determination of the validity of the privileges at issue. Thomas argues that it is far from clear that Mr. Gee was asserting an invalid privilege. At the hearing, the court refused to appoint counsel to explain the privilege to him. Only after being offered immunity and being held in contempt for his refusal to testify was an attorney appointed for him. Only at that point did the attorney conclude that Mr. Gee did not have a valid right to assert his Fifth Amendment rights. In Gearns, it does not appear that the trial court employed the proper procedures for determining the validity of Gregory Gearns’ privilege.

First, the prospective witness must show, at the very least, that he is faced with some authentic danger of incrimination. United States v Castro, 129 F3d 226, 229 (CA 1, 1997), citing Hoffman v United States, 341 US 479, 486-487; 71 S Ct 814; 95 L Ed 1118 (1951). Because the privilege cannot be invoked on a blanket basis and thus operates question by question, the trial court must conduct a particularized inquiry. Id. at 229. The questions need not be directly incriminating for the privilege to attach. Moreover,

[i]f a reply to a seemingly innocuous question reasonably will tend to sculpt a rung in the ladder of evidence leading to prosecution, the privilege appropriately may be invoked. [Id. at 229; Hoffman at 486.]

The trial judge here conducted no such inquiry. It was established before trial, on the basis of information he gave the police, that Gregory Geams had a valid privilege regarding events after the murder. He was granted immunity as an accessory after the fact. However, he was asserting his Fifth Amendment privilege regarding events occurring before that.

It was apparently legal error for the trial judge in Geams to fail to conduct a particularized inquiry of Gregory Geams’ assertion of the privilege regarding events not covered by the grant of immunity. The prosecutor and the trial judge seemed to believe that this witness did not have a valid privilege because the prosecutor had no evidence of his involvement, except as an accessory after the fact. However, the validity of the privilege is not dependent on whether the authorities already have evidence against a person. The point of the privilege is to invoke the right to prevent the authorities from compelling a witness to give seft-incriminating evidence.

Moreover, “it is never within the trial court’s discretion to make a determination that is premised on an incorrect legal standard.” Castro at 229. Here, the trial judge relied on an incorrect legal standard; the validity of the privilege is not based on whether the prosecutor already has any evidence that would incriminate a witness. Gregory Geams was also later acquitted of contempt, which further evidences the real possibility that his privilege was indeed valid, contrary to the decision of the trial court.