[673]*673Swainson, J.
Defendant Hampton, charged with assault with intent to commit murder, was convicted by a jury in Genesee County Circuit Court. Subsequently, on April 1, 1966, he was sentenced to 7-1/2 to 20 years. Defendant had interposed the defense of insanity at the time of the commission of the crime. Counsel for the defendant requested that the jury he given a Lyles instruction (Lyles v. United States [1957], 103 App DC 22 [254 F2d 725]). This would inform the jury that if defendant was found not guilty by reason of insanity, he would not thereby he released, hut rather committed to a suitable institution for treatment. The trial court refused to give the instruction requested. On appeal, the Court of Appeals reversed based on People v. Cole (1969), 382 Mich 695, and People v. Herrera (1970), 383 Mich 49. See People v. Hampton (1970) 23 Mich App 190.
The Court of Appeals held that the Lyles instruction applied to all cases on appeal as of the date of the filing of the Cole opinion which had properly preserved such issue for appeal. From this decision, the people were granted leave to appeal (383 Mich 795).
The issue before the Court is whether the rule laid down in People v. Cole (1969), 382 Mich 695, should apply only prospectively (to cases commenced after December 2, 1969) or should extend to cases which had properly preserved the issue for appeal.
I.
The issue as to whether a new rule of law should he applied retroactively or only prospectively is one which the courts have discussed in detail in innumerable cases.
“We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly * * * , that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted.”
This position has been consistently adhered to and this Court is under no constitutional compulsion to apply the Cole rule, either prospectively or retrospectively.
The United States Supreme Court has discussed various factors to be used in determining whether a law should be applied retroactively or prospectively. There are three key factors which the court has taken into account: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. See, e.g., Linkletter v. Walker (1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601); Tehan v. United States ex rel. Shott (1966), 382 US 406 (86 S Ct 459, 15 L Ed 2d 453).
In order to determine the purpose behind the Cole rule, we must first look at the Lyles case. In Lyles v. United States, supra, defendant was charged with grand larceny, robbery and the unauthorized use of a motor vehicle. He had been adjudged not competent, by reason of insanity, to stand trial in February 1955. Another hearing was held in November [675]*6751955, and at that time he was adjudged competent to stand trial. He pleaded not guilty to the crime charged, by reason of insanity. At the trial, the grand larceny charge was dismissed by the prosecution. A jury found the defendant guilty of robbery and the unauthorized use of a motor vehicle. On appeal, the District of Columbia circuit court sitting en banc affirmed his conviction. The trial judge had instructed the jury that if the defendant was found not guilty by reason of insanity, the court would commit him to St. Elizabeths Hospital. Sis of the nine judges felt that this instruction was required. Judges Prettyman and Burger stated in a joint opinion (p 25):
“The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955 [69 Stat 610, D.C. Code § 24^301 (1951) (Supp V)]. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.”
[676]*676Our Court adopted this rule in the case of People v. Cole, supra. The defendant in Cole had been convicted of murder in the second degree. The Court of Appeals affirmed the conviction (McGregor, J., with J. H. Gillis, J. concurring and T. G. Kavanagh, J. dissenting on the ground that the jury-should have been given a Lyles type instruction) 8 Mich App 250. On appeal, the Supreme Court reversed. A review of the opinions filed indicates that perhaps inadmissible evidence as to defendant’s sanity had been introduced. However, a majority felt that it was error not to have given the Lyles instruction. Justice T. M. Kavanagh stated in the majority opinion (pp 720, 721):
“We feel that Lyles v. United States, supra, is the better reasoned authority and hold that in all criminal trials or retrials taking place after the date of the filing of this opinion, where the defense of insanity is present and that issue is made submissible by the proofs, the defendant, upon his own timely request, or upon request of the jury, shall he entitled to an instruction in accord with the rule of Lyles.”
It is clear that the primary purpose of this instruction is to insure that a defendant will not he found guilty because the jury fears that he will he set free if an insanity verdict is returned. Thus, this decision goes to the very heart of our jury trial system. The United States Supreme Court has applied decisions retroactively where the guilt or innocence of the defendant was at stake. Thus, in Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100), the court held that Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476), which excluded a defendant’s extrajudicial confession implicating a codefendant at a joint trial, is a violation of the Sixth Amendment right to cross-[677]
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[673]*673Swainson, J.
Defendant Hampton, charged with assault with intent to commit murder, was convicted by a jury in Genesee County Circuit Court. Subsequently, on April 1, 1966, he was sentenced to 7-1/2 to 20 years. Defendant had interposed the defense of insanity at the time of the commission of the crime. Counsel for the defendant requested that the jury he given a Lyles instruction (Lyles v. United States [1957], 103 App DC 22 [254 F2d 725]). This would inform the jury that if defendant was found not guilty by reason of insanity, he would not thereby he released, hut rather committed to a suitable institution for treatment. The trial court refused to give the instruction requested. On appeal, the Court of Appeals reversed based on People v. Cole (1969), 382 Mich 695, and People v. Herrera (1970), 383 Mich 49. See People v. Hampton (1970) 23 Mich App 190.
The Court of Appeals held that the Lyles instruction applied to all cases on appeal as of the date of the filing of the Cole opinion which had properly preserved such issue for appeal. From this decision, the people were granted leave to appeal (383 Mich 795).
The issue before the Court is whether the rule laid down in People v. Cole (1969), 382 Mich 695, should apply only prospectively (to cases commenced after December 2, 1969) or should extend to cases which had properly preserved the issue for appeal.
I.
The issue as to whether a new rule of law should he applied retroactively or only prospectively is one which the courts have discussed in detail in innumerable cases.
“We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly * * * , that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted.”
This position has been consistently adhered to and this Court is under no constitutional compulsion to apply the Cole rule, either prospectively or retrospectively.
The United States Supreme Court has discussed various factors to be used in determining whether a law should be applied retroactively or prospectively. There are three key factors which the court has taken into account: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. See, e.g., Linkletter v. Walker (1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601); Tehan v. United States ex rel. Shott (1966), 382 US 406 (86 S Ct 459, 15 L Ed 2d 453).
In order to determine the purpose behind the Cole rule, we must first look at the Lyles case. In Lyles v. United States, supra, defendant was charged with grand larceny, robbery and the unauthorized use of a motor vehicle. He had been adjudged not competent, by reason of insanity, to stand trial in February 1955. Another hearing was held in November [675]*6751955, and at that time he was adjudged competent to stand trial. He pleaded not guilty to the crime charged, by reason of insanity. At the trial, the grand larceny charge was dismissed by the prosecution. A jury found the defendant guilty of robbery and the unauthorized use of a motor vehicle. On appeal, the District of Columbia circuit court sitting en banc affirmed his conviction. The trial judge had instructed the jury that if the defendant was found not guilty by reason of insanity, the court would commit him to St. Elizabeths Hospital. Sis of the nine judges felt that this instruction was required. Judges Prettyman and Burger stated in a joint opinion (p 25):
“The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955 [69 Stat 610, D.C. Code § 24^301 (1951) (Supp V)]. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.”
[676]*676Our Court adopted this rule in the case of People v. Cole, supra. The defendant in Cole had been convicted of murder in the second degree. The Court of Appeals affirmed the conviction (McGregor, J., with J. H. Gillis, J. concurring and T. G. Kavanagh, J. dissenting on the ground that the jury-should have been given a Lyles type instruction) 8 Mich App 250. On appeal, the Supreme Court reversed. A review of the opinions filed indicates that perhaps inadmissible evidence as to defendant’s sanity had been introduced. However, a majority felt that it was error not to have given the Lyles instruction. Justice T. M. Kavanagh stated in the majority opinion (pp 720, 721):
“We feel that Lyles v. United States, supra, is the better reasoned authority and hold that in all criminal trials or retrials taking place after the date of the filing of this opinion, where the defense of insanity is present and that issue is made submissible by the proofs, the defendant, upon his own timely request, or upon request of the jury, shall he entitled to an instruction in accord with the rule of Lyles.”
It is clear that the primary purpose of this instruction is to insure that a defendant will not he found guilty because the jury fears that he will he set free if an insanity verdict is returned. Thus, this decision goes to the very heart of our jury trial system. The United States Supreme Court has applied decisions retroactively where the guilt or innocence of the defendant was at stake. Thus, in Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100), the court held that Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476), which excluded a defendant’s extrajudicial confession implicating a codefendant at a joint trial, is a violation of the Sixth Amendment right to cross-[677]*677examination and should he applied retroactively both to state and Federal prosecutions.
See, also, McConnell v. Rhay (1968), 393 US 2 (89 S Ct 32, 21 L Ed 2d 2), applying the decision of Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336), retroactively; and Arsenault v. Massachusetts (1968), 393 US 5 (89 S Ct 35, 21 L Ed 2d 5), applying White v. Maryland (1963), 373 US 59 (83 S Ct 1050, 10 L Ed 2d 193), retroactively.
The people have pointed out numerous instances where the Supreme Court has applied decisions prospectively. However, an analysis of these opinions clearly indicates that they do not involve rules which go to the ascertainment of guilt or innocence. In Tehan v. United States ex rel. Shott (1966), 382 US 406 (86 S Ct 459, 15 L Ed 2d 453), the court held that Griffin v. California (1965), 380 US 609 (85 S Ct 1229, 14 L Ed 2d 106), did not apply retroactively and thus the adverse comment of a prosecuting attorney did not require reversal of the convict tion. The court stated (p 416):
“By contrast, the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth.”
See, also, Linkletter v. Walker, supra, where the Supreme Court held that Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933), applies prospectively, and Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199), where the court held that United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), applies prospectively.
The second and third factors can he dealt with together, because the amount of past reliance will often have a profound effect upon the administration of justice. The question of a Lyles type instruction [678]*678was first raised in the Cole case. Justice T. M. Kavanagh stated, “It is a matter of first impression in Michigan.” Thus, the Supreme Court was not overruling an earlier rule the trial judges had relied on for many years. In Linkletter v. Walker, supra, one of the main points of the United States Supreme Court in not applying Mapp retroactively was that law enforcement officers had relied on the rule as set down in Wolf v. Colorado (1949), 338 US 25 (69 S Ct 1359, 93 L Ed 1782), for over a decade in all parts of the country. That is not the situation here, and no such large scale reliance has occurred.
The people contend:
“[T]here may well he a great number of convictions in Michigan where the defendants interposing that defense have been refused the Lyles type instruction as to the post-verdict consequences of a verdict of not guilty by reason of insanity prior to, and subsequent to the case of People v. Cole, 8 Mich App 250 (1967).”
This may very well be true, however, the effect on the administration of justice is, of course, a matter of degree to be determined based partially on the goal to be accomplished in formulating a new rule.
The United States Supreme Court stated in Roberts v. Russell, supra (p 295):
“And even if the impact of retroactivity may be significant, the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined.”
This statement is applicable to this situation. Presumably there are other cases in which this issue was raised. Clearly, however, the number will be small and in no case will it be anywhere near the number of cases affected by decisions such as Gideon [679]*679v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L Ed 2d 799, 93 ALR2d 733).
II.
The people contend that the Court of Appeals erred in concluding that People v. Herrera, supra, required reversal. In Herrera, we reversed a conviction hy the following brief statement: “For the reasons given and authorities cited in People v. Cole (1969), 382 Mich 695, this cause is reversed and remanded for a new trial.”
The people contend that both Cole and Herrera were reversed because of the inadequacy of the State’s proofs to establish sanity beyond a reasonable doubt. In the Cole case, four Justices wrote concurring opinions, in addition to the opinion of the Court by Justice T. M. Kavanagh. In order to dispel any ambiguity we set forth the following in applying the Cole rule:
We hold that the rule laid down in People v. Cole, supra, properly applies to all cases where:
1. It is determined, from the proofs, that the issue is submissible to the jury;
2. That the defendant or a member of the jury requested such an instruction as to the disposition of the defendant if he were to be found not guilty by reason of insanity; and
3. The trial court thereafter refused to so instruct, and
4. The issue was properly preserved for appeal.
To rule otherwise would be to unfairly punish the defendant because Cole’s case arrived for our disposition before his did.
The people also contend, that since Hampton’s attorney told the jury of his disposition if he were found not guilty by reason of insanity, we should [680]*680affirm his conviction. There is a great deal of distinction between the formal instructions given to a jury by a trial judge and the assertions to a jury by counsel. Counsel are advocates and their views, although affirmatively stated, are not binding on the jurors. One of the prime purposes of the court’s instructions to the jury is to definitively inform the jurors of the applicable law and to separate the law from advocacy. To allow affirmance of the conviction because of counsel’s statement would be as Justice T. Gr. Kavanagh said in his dissent in People v. Cole (1967), 8 Mich App 250, 259:
“To do a little evil to accomplish a great good is a temptation as old as Eve. To find an innocent person guilty to protect society, alas, may appear to some as a fair bargain, but it is the old temptation nonetheless.”
The decision of the Court of Appeals is affirmed.
T. M. Kavanagh, C. J., and Adams, T. G-. Kavanagh, and Williams, JJ., concurred with Swain-son, J.
See, e.g., Linkletter v. Walker (1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601).