People v. Manning

Archer, J.

(dissenting). Defendant Robin Rick Manning was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548. Saginaw Circuit Court Judge Fred J. Borchard sentenced defendant to a mandatory life sentence. The Court of Appeals affirmed defendant’s conviction and sentence. We granted leave to appeal limited to the issue whether the trial court erred in denying the defendant’s motion for mistrial and his request to keep from the jury the details of his codefendant’s midtrial guilty plea.

I would hold that the trial court abused its discretion in its failure to grant the defendant a new trial and erred by allowing the introduction of *22the details of Manning’s codefendant’s guilty plea over Manning’s timely objection. I therefore respectfully dissent.

FACTUAL AND PROCEDURAL BACKGROUND

In August, 1984, defendant Manning and William John Luna each were charged with first-de&ree murder, carrying a weapon with unlawful intent and possession of a firearm during the commission of a felony in the fatal shooting of Thomas Newvine. Newvine’s death stemmed from an argument between himself and one Gilbert Morales at a neighborhood house party. During the course of the argument, Newvine forcefully ejected Morales from the party, at which time Morales threatened to return later and kill New-vine. After Morales was ejected from the party, he called William Luna seeking backup in the fight he intended to continue with Newvine. At the time Morales called Luna, the defendant was also present and agreed to assist when Morales returned to the house party.

Subsequently, the defendant and Luna apparently met Morales at his home, at which time Morales joined them in the defendant’s car, armed with two long-barreled guns. There is conflicting testimony as to whether the defendant was aware that Morales was in possession of the weapons at the time he entered the defendant’s car.1 When the trio arrived at the party, Newvine was standing in the street immediately outside the home in which the party was being held. Morales shot at Newvine repeatedly, killing him._

*23Defendant and William Luna were scheduled to be tried jointly for Newvine’s murder. The trial court denied three separate motions for severance that Luna made and Manning joined.

For four consecutive days, Manning and Luna were codefendants in a joint trial. On the fifth day, William Luna accepted a plea bargain and pleaded guilty of second-degree murder. The defendant rejected a similar bargain against the advice of counsel.

Outside the jury’s presence, Manning’s counsel then asserted that a new trial was necessary in order to prevent the jury from drawing from Luna’s plea an impermissible inference of Manning’s guilt. In the alternative, counsel requested that the trial court inform the jury only that Luna had pled guilty of an unspecified charge.

The trial court denied the motion for a mistrial and informed the jury that Luna had pled guilty of second-degree murder, cautioning the jury that it was not to draw any inference from Luna’s guilty plea and that Manning remained entitled to the presumption of innocence.

Five days after Luna and Manning’s attorneys delivered opening arguments indicating to the jury that the facts would show that Luna and Manning were both passive observers to Morales’ crimes, Luna was called as a witness against the defendant. Essentially, Luna told the jury that the defense theory his counsel had briefly outlined for the jury — a defense virtually identical to that told by Manning’s attorney — was a lie. Although Luna stated it was Morales who fired the fatal shots, he told the jury that Manning played an active role in the shooting. Luna’s testimony contradicted Luna’s and Manning’s earlier statements to the police and Manning’s testimony regarding the kill*24ing. The testimony directly contradicted the defenses outlined by both defense attorneys.

Luna maintained both on direct and cross-examination that his testimony was not given in order to avoid a conviction of first-degree murder. Rather, he asserted that his plea was given without consideration and was merely an attempt to clear his conscience and state the events as they actually occurred.2

The jury found Manning guilty of first-degree murder, carrying a weapon with unlawful intent, and felony-firearm.

After the Court of Appeals affirmed his conviction in an unpublished per curiam opinion, Manning sought leave to appeal in this Court. We granted leave limited to the issues of the trial court’s refusal to grant the defendant a new trial and the propriety of its introduction of the details of William Luna’s guilty plea. 430 Mich 890 (1988).

i

The trial court committed error requiring reversal in its refusal to grant a mistrial subsequent to the entry of William Luna’s guilty plea.3 While I am cognizant of the great amount of deference afforded a trial court’s decision on a motion for a new trial, my examination of the facts in this case leads me to the conclusion that the trial court abused its discretion when it denied Manning’s motion, because Manning’s substantial rights to a fair trial and to a presumption of innocence were unjustly prejudiced._

*25A

It was impossible for Manning to receive a fair trial when his codefendant, who for four days of trial had pursued a nearly identical defense, admitted committing murder and took the stand for the prosecution.

The opening arguments and cross-examinations of defense counsel indicate that Luna and Manning pursued complementary defenses which placed each at the murder scene, yet depicted Morales as the key actor. However, upon Luna’s entry of the guilty plea, Luna’s story and role changed dramatically. While he was formerly Manning’s companion at the defense table, he became Manning’s accuser from the witness stand.4

[Prosecutor (on direct examination)]:

Q. Who drove to the party?

A. Manning.

Q. WThat happened then?

A. And then, well, Manning got out the car, was talking to somebody, too. And then he opened the back seat of the back, in back, and then he got, uh, the .22 out. And then he went around and went to the passenger’s side where I was.

Q. All right. When you say around, did he go around the car in the front or around the car in the back?

A. The back.

Q. So Manning, who was in the driver’s seat, got out, got a .22 out of the back seat?

A. Yeah.

*26Q. And walked around the back of the car and got in which passenger’s seat?

A. The front. In the passenger’s seat.

Q. The front? What did you do since you had already been at that seat?

A. Well, I just scooted to the driver’s seat.

Q. Did anybody tell you to do that?

A. Yeah. Manning told me, "Scoot over,” you know. Gilbert said, "Go ahead, drive.”

Q. Go ahead, what?

A. Drive.

Q. Drive?

A. Yes.

Q. Did Manning tell you to drive, too?

A. Yes.

Q. What happened then?

A. Well, then I scooted over and Manning got in the car with that rifle and then Gilbert handed him a shot gun, and then Manning passed him back the .22. And then Gilbert said, "You ready?” He said, "Yeah.” So, you know, we were driving. I was driving slow and I ducked, you know, ducked down.

[Direct examination continued]:

Q. Mr. Luna, at the time of your arrest, did you have the occasion to speak with Detective Genovese?

A. Yes.

Q. And did Detective Genovese read you your rights and you waived them and decided that you would give a statement?

A. Yes.

Q. In that particular statement, you said some things but didn’t say everything that you told the Court and the jury today?

A. Yes.

Q. What happened between then and now? I mean, why didn’t you tell Detective Genovese at the statement everything you’re telling us now?

A. Well, I was scared to tell them because, you *27know, I didn’t want to get, get involved with this stuff. But that’s why I’m here, to tell the truth, you know, because . . .

Q. Is it fair to say, Mr. Luna, you were trying to save your neck at the time that you were talking to Detective Genovese?

A. Yeah. Yes.

Q. So you were going to put yourself in the car driving?

A. Yes.

[On cross-examination]:

Q. You told [Detective Genovese] that the guns weren’t put in the car.

A. Yes. I told him that.

Q. When Detective Genovese asked you whether the car ever stopped and people got out and changed places, how did you tell him? Did you tell him yes or no?

A. What’s that?

Q. When Detective Genovese asked you whether or not the car had ever stopped and people had changed places, did you tell him that it happened or it hadn’t happened?

A. I told him that it didn’t happen.

Q. Did you tell the Detective that you didn’t know that he had a gun?

A. Did I tell him?

Q. That you didn’t know that Gilbert Morales had a gun.

A. Oh, yeah. That was . . .

Q. And you did tell him that the guns were not brought to the car by Gilbert Morales, didn’t you?

A. That’s when, uh, right. You know, that statement right there, that’s when I was talking to him but, see, you know, I’m making everything clear so you know. Right there is where I lied on the statement. That’s why I’m . . .

*28Q. Why did you suddenly want to tell the truth after you lied so much?

A. Because, you know, that’s the way I feel about it, you know.

Q. What happened that suddenly changed your mind that you feel this way?

A. I just didn’t want to take it to trial because, you know, I’m guilty — we’re guilty, you know.

Q. Mr. Luna, isn’t the truth of the matter that you didn’t want to take it to trial because you didn’t want to risk being found guilty by the jury?

A. No, not that. It’s just like I said. I wanted to plead guilty because I am guilty.

Q. You wanted to take the sure thing, didn’t you?

A. What’s that?

Q. You wanted to take the plea bargain and take the sure thing, didn’t you?

Mrs. McLeod: Objection, Your Honor. I think that counsel and I should approach the bench at this point.

(Whereupon a discussion was held off the record.)

Q. I’m not certain that you answered the last question, Mr. Luna. My question to you was: Didn’t you want to take the plea bargain because you knew what was going to happen?

A. No. I took it because, you know, it’s the way it is.

On recross-examination:

Q. Mr. Luna, you just told the Prosecutor from your statement that you told the Detective you weren’t sure when the guns were put in the car; is that correct?

A. Yes. But now I’m telling the truth right now.

Q. All right. Now, from your statement, the question and answer directly underneath the ones you just responded to for the Prosecuting Attorney, those two, the third question from the bottom, *29after saying you’re not sure when the guns were put in the car, didn’t you turn around and then tell Detective Genovese you never saw a gun until he was shot?

A. Let me read this first.

Q. Please do.

A. What’s that now?

Q. When the Prosecuting Attorney just asked you the question from what you told Detective Genovese, you told them you weren’t sure when the guns were put in the car; is that correct?

A. That’s when I was lying.

Q. I see. Now, the question and answer from your statement which is directly underneath the questions you responded to, you told Detective Genovese you never seen [sic] a gun until Gilbert shot; isn’t that correct?

A. Yes. But that’s when I was lying.

Q. Okay. Now, that means you told either the police or us here in Court three different things. You’ve said no; the guns weren’t put into the car, then you said maybe they were, and now today you say yes, they were. Those are three different answers, aren’t they?

A. Uh-hum.

Q. They’re conflicting answers, aren’t they?

A. What you mean by that?

Q. They don’t agree with each other, do they?

A. Well, the one I told here was the one I meant. It was true.

Q. Oh, I see. So the others aren’t true?

A. Yes. [Emphasis added.]

Luna specifically recanted the story of innocence he originally told the police and the defense theory both his and Manning’s attorney had been building. Luna thereby communicated to the jury that Manning was a liar when he pleaded "not guilty” and demanded a jury of his peers. Luna sat at the defense table for four days, and the fifth day he sat before the jury and told them that in present*30ing his defense, "I was lying . . . I’m guilty — we’re guilty . . . This communication deprived Manning of a fair trial.

B

It is well-settled that Manning had no absolute right to a separate trial. The Code of Criminal Procedure, MCL 768.5; MSA 28.1028, gives the trial court the discretion to decide whether co-defendants may be tried separately or jointly. A court abuses that discretion, however, when it fails to grant a new or separate trial to a defendant whose substantial rights might be prejudiced by the continuation of a joint trial. See People v Schram, 378 Mich 145; 142 NW2d 662 (1966); People v Hurst, 396 Mich 1; 238 NW2d 6 (1976); People v Duplissey, 380 Mich 100; 155 NW2d 850 (1968).5

In his opinion for the Court in Hurst, supra at 4, Justice Levin stated, "[a] defendant is entitled to a trial separate and apart from a codefendant who it appears may testify to exculpate himself and incriminate the defendant seeking a separate trial.” Here, it not only appeared that Luna might testify to exculpate himself and incriminate Manning, he did precisely that. Before Luna’s plea, both defendants advanced the theory that neither knew Morales possessed weapons. How*31ever, while testifying at trial, prior to his sentencing hearing, Luna told the jury (and the judge) that Manning handled weapons while Luna merely drove Manning’s car. Luna’s impetus to assist the prosecution in convicting Manning is clear. It is precisely this codefendant-as-prosecutor scenario that the rule in Hurst is meant to prevent. The lead opinion misreads the record when it states there is "no claim that the defendants attempted to exculpate themselves while destroying each other . . . .” Ante, p 9.

Likewise, the lead opinion misconceives rules articulated by this Court in Duplissey and Schram when it suggests that the standard for granting a mistrial depends on a Hurst analysis or a finding that "the prosecution timed the negotiations to achieve [a codefendant as prosecutor] result. . . .” Ante, p 9. The analysis here requires inquiry into prejudicial effect, not prosecutorial intent. In People v Duplissey, supra, a unanimous bench of this Court agreed that defendant Duplissey was unfairly prejudiced by the continuation of a joint trial where his codefendants were engaged in behavior so rude and disruptive that the trial court ordered them bound and gagged. The Court reversed Duplissey’s conviction because of the risk that the jury based its verdict on the actions of his codefendants. The Court never inquired into prosecutorial intent:

[F]rom a fair reading of the record, we can only conclude that appellant was so prejudiced by trial with the codefendants, whose conduct has been herein described, as to render the denial of his motion timely made for a separate trial an abuse of judicial discretion. [380 Mich 104.]

Manning was similarly prejudiced in the eyes of the jury when his codefendant changed his plea midtrial and testified to the same jury he had just *32been asking to acquit him. He should be allowed a new trial untainted by the risk that the jury will convict because his codefendant changed his story before the jury’s eyes.

While it is true that at a new trial Luna may once again take the stand to testify against his former codefendant, at a new trial he would do so before a new jury, a jury that did not hear Luna’s and Manning’s two attorneys make similar claims before Luna renounced these claims as "lies.” The jury most certainly made a logical inference when Luna left the defense table and admitted that his plea of not guilty was disingenuous: the jury would naturally — and impermissibly — infer that Manning’s plea and his attorney’s argument were likewise obfuscations of the truth. Such an inference took from Manning a fundamental right guaranteed to all accused — the right to be presumed innocent.

The implication the jury would naturally draw from Luna’s midtrial change of plea is also impermissible because it promotes an inference of guilt by association. Every criminal defendant has the right to have guilt or innocence determined on the basis of the defendant’s own actions and intent, not on the grounds of a codefendant’s admissions. People v Eldridge, 17 Mich App 306; 169 NW2d 497 (1969); People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). Justice Cooley, writing for a unanimous Court in People v Stevens, 47 Mich 411, 413; 11 NW 220 (1882), held that a judge committed "grave” error in instructing a jury incorrectly regarding the effect of a codefendant’s admissions on the guilt of the accused:

[The codefendant] could admit the crime for himself, but he could make no admissions for [the defendant], even though they might relate to his own conduct.

*33This Court reiterated that principle eighty-five years later in People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967):

Whenever defendants are jointly tried, it is of utmost importance that the rights of each defendant be carefully protected by the trial judge. No defendant should be convicted of the crime of another defendant.

When one codefendant changes his plea, the jury’s natural, human reaction will be to convict one on the admission of the other. Such a conviction should be reversed because it is based on a premise forbidden by the law. To determine guilt, a jury must find beyond a reasonable doubt that a defendant’s actions and intent were those proscribed by a criminal statute. A verdict based on any less a finding is incurably flawed. Thus, where a jury is allowed to find "if one codefendant is admittedly a murderer, the other codefendant must also be a murderer,” the verdict must be reversed.6

An instruction from the bench is simply insufficient to overcome the prejudice in this situation. I agree with the reasoning propounded by the United States Supreme Court in Bruton v United States, 391 US 123, 135-136; 88 S Ct 1620; 20 L Ed 2d 476 (1968):

[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is *34so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. [Citations omitted.][7]

A majority of this Court explicitly adopted this language from Bruton in People v Allen, 429 Mich 558; 420 NW2d 499 (1988). Writing for the Court, Justice Brickley held that in some situations, a cautionary instruction is simply inadequate to prevent the jury from drawing impermissible inferences from evidence of a testifying witness’ prior convictions. Allen at 572-574.

Therefore, because the record shows Manning’s conviction of first-degree murder to rely so heavily on Luna’s testimony as the only available eyewitness account regarding Manning’s direct involvement in the shooting, I would reverse the judgments of the trial court and the Court of Appeals and grant Manning a new trial.

ii

Consistent with our grant of leave to appeal, there remains the question of the propriety of the trial court’s introduction of the details of Luna’s guilty plea. The claim of error before the Court is not whether the trial court erred in informing the *35jury that Luna pled guilty, or whether the trial court erred in allowing the prosecution to elicit details of Luna’s plea on direct examination once the court had already informed the jury of the details of the plea. Rather, the issue is whether the court erred when it informed the jury that Luna pled guilty of murder.8

This case raises the difficult question when otherwise relevant evidence should be excluded on timely motion by a defendant because its prejudicial effect would subvert the trial’s truth-seeking process.

Because I recognize the danger that a jury might unfairly and impermissibly infer a defendant’s guilt from the guilty plea of a codefendant, I would hold that evidence of the details of a codefendant’s guilty plea of the crime with which the defendant is charged may be admitted into evidence so long as the defendant does not timely object. Such evidence is, however, admissible only where the defendant seeks to attack the testifying codefendant’s credibility on the basis of the deal he has made with the prosecution. Such a rule would not disturb the prosecutor’s duty imposed by People v Standifer, 425 Mich 543; 390 NW2d 632 (1986), People v Woods, 416 Mich 581; 331 NW2d 707 (1982), and the professional rules of ethics to disclose to the court and defendant’s counsel any leniency or promises of favorable *36treatment granted a witness in exchange for testimony, where the defendant is unaware of the terms of the agreement or where such disclosure is necessary to prevent or oppose perjurious testimony.

While I agree with the thrust of the rule offered by the lead opinion in its "clarification” of the Woods/Atkins/Lytal cases,9 I disagree for three reasons. First, it holds that the admission of the details of Luna’s guilty plea did not unfairly prejudice Manning. Second, it amends MRE 607(2)(A) to allow the court or the prosecution to bring in evidence regarding the substantive offense to which a codefendant has pled upon the trial court’s conjecture regarding what the defendant’s theory of cross-examination will be. Third, it allows prejudicial introduction of evidence of the details of the codefendant’s plea whenever that codefendant’s credibility is attacked, instead of carefully limiting that exception to situations where the witness’ credibility is attacked on the basis of a deal with the prosecution.

A

While I agree that introduction of the details of a codefendant’s guilty plea will prevent jury speculation and better enable a jury to evaluate a witness’ credibility, I strongly disagree that it necessarily "limits prejudice.” Ante, p 11. The lead opinion fears the exclusion of undeniably relevant evidence regarding the terms of a codefendant’s plea "may confuse or mislead the jury.” Ante, p 19. I believe, however, that in instances such as that presented in this case, the danger of a jury *37unfairly convicting a defendant on the basis of a codefendant’s admitted guilt are so great that the truth-seeking process can only be served by withholding from the jury any details regarding the crime to which a codefendant pled, the opinions of Judge Posner notwithstanding.

Our rules of evidence have long recognized that some logically relevant10 evidence must be kept from the jury if its introduction might lead to impermissible inferences. As currently written and interpreted, MRE 402 recognizes that not all logically relevant material is legally relevant. Indeed, many evidentiary rules exclude "relevant” evidence, either because its admission would contravene some important policy,11 because it is not sufficiently trustworthy, or because its admission would tend to mislead or prejudice the jury, causing it to short circuit its important deliberative processes. It has been said that a major purpose of the Rules of Evidence is to control the type, character, and quality of the information which reaches the jury in order that, as a society and as legal practitioners, we can put faith in the verdicts of juries — so that we can comfortably call them "the truth.”12

MRE 403 provides that relevant evidence may be withheld from a jury when "its probative value is substantially outweighed by the danger of unfair *38prejudice, confusion of the issues, or misleading the jury . . . That rule has been consistently applied by this Court in cases where we have held trial courts in error for allowing relevant but overly prejudicial evidence to be presented to the jury. For example, this Court has recognized that

[ejvidence of other crimes is barred because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence. [People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973).]

In People v Robinson, 417 Mich 661, 665; 340 NW2d 631 (1983), this Court reversed a conviction where a jury was allowed to hear testimony regarding the defendant’s extensive criminal record, despite the trial court’s instruction that the testimony was only to be considered as the basis of an expert psychologist’s opinion.

We agree with the defendant that it "is simply incredible that anyone would hear all of those prior acts of criminal conduct and then remove them from their mind based upon an instruction by the court when they are then to consider the guilt or innocence of the accused.”

Thus, it is apparent that we have already adopted rules which exclude relevant evidence and will not allow its introduction even when accompanied by cautionary instructions.

Jurisprudence under MRE 403 thus has always recognized that some evidence is simply inadmissible, regardless of whether its proffered use might be otherwise appropriate. The lead opinion correctly states that "the purpose for which evidence *39is admitted . . . governs its proper use,”13 but it ignores the equally well-established principle that the propensity of some evidence to impermissibly mislead a jury is of sufficient magnitude that the evidence must be excluded, regardless of the existence of a "proper” use for that evidence. See DerMartzex and Robinson, supra.

Our laws of evidence are rife with illustrations of how a fundamental mechanism for assuring the accuracy of a jury’s truth-seeking function involves withholding from a jury certain undeniably relevant, unquestionably true pieces of evidence where that evidence might mislead a jury. Evidence of the details of a codefendant’s guilty plea can be precisely this type of misleading evidence, because of the danger that it will lead a jury to the natural inference, despite any admonitions from the bench to the contrary, that if one defendant is a murderer, his codefendant must also be one.

Mr. Manning was denied a fair trial because the truth-seeking process of his trial may have been perverted in the following manner: once the jury learned that William Luna pled guilty of being a murderer, the jury would inescapably conclude that Mr. Manning was also a murderer, since the prosecution’s case against Manning was almost identical to (or worse than) the case against Luna the jury had heard. Instead of weighing the government’s case against Manning and coming to an independent conclusion regarding whether Manning was guilty of murder, the jury was strongly tempted to circumvent the prescribed process and conclude "if Luna is a murderer, then Manning must also be a murderer.” Telling the jury that Luna is an admitted murderer effectively foreclosed the jury’s ability logically to come to any *40different conclusion regarding Manning, so long as the government’s case against Manning was at least as strong as that against Luna. If a jury is told that case a equals case b and case a equals murder, there is no logical way for the jury to ever conclude that case b does not also equal murder.

The lead opinion relies on federal cases to support its holding that admission of a codefendant’s plea does not constitute error, provided the bench properly cautions the jury on the plea’s use, but it fails to mention a line of federal cases which hold that reversal may be appropriate if a cautionary instruction is not given, if it is insufficient, or if there are other factors "aggravating” the prejudice. See, e.g., United States v Harrell, 436 F2d 606 (CA 5, 1970), Gaynor v United States, 101 US App DC 177; 247 F2d 583 (1957), Payton v United States, 96 US App DC 1; 222 F2d 794 (1955), and LeRoy v Gov’t of Canal Zone, 81 F2d 914 (CA 5, 1936). The lead opinion does mention United States v Baete, 414 F2d 782 (CA 5, 1969), correctly indicating that federal courts recognize that there are situations in which introduction of a codefendant’s guilty plea may require reversal. This line of federal cases clearly holds that, while a cautionary instruction will generally be adequate to preserve the rights of a defendant from unlawful prejudice caused by introduction of a codefendant’s guilty plea, there are situations where such introduction may require reversal because of "aggravating” circumstances. I believe such aggravating circumstances clearly exist in this case, where Luna’s and Manning’s defenses were so similar and complementary, where one codefendant pled guilty after four full days of trial and where the prosecutor commented upon the substantive im*41port of the codefendant’s plea.14 In fact, Baete states that this is precisely the sort of case where a corrective instruction would be insufficient to cure prejudice.15

Ultimately, however, this federal precedent is only tangentially useful to us. First, the question raised in the federal authority deals with the appropriateness of introducing evidence of a guilty plea. The issue, here is not whether Luna’s plea should have been mentioned to the jury (I am in agreement that the jury should have been told why Luna left the defense table), but, rather, what should have been told to the jury regarding Luna’s plea. On that question, the holdings of these federal cases are not as important as the dicta adopted in the reasoning of most of these opinions, exemplified in Scarborough v United States, 232 F2d 412, 414 (CA 5, 1956):

When appellant chose to exercise his constitutional right of pleading not guilty, after his fourteen co-defendants had entered pleas of guilty, only the utmost care and caution on the part of Government counsel and of the court could assure him a fair and impartial trial. [Emphasis added.]

I believe that "utmost care and caution” in this case required the nondisclosure of the fact that Luna pled guilty of "murder.”

Second, federal precedent is of limited use to us *42because we are asked in this case to determine rules of trial procedure in the courts of this state. Decisions regarding how the federal courts limit the introduction of evidence are useful to us only by way of analogy.

The lead opinion’s reliance on federal precedent for the proposition that the court’s cautionary instruction cured any prejudice caused by the admission of Luna’s guilty plea is unfounded. Members of both the bench and bar recognize that instructions are not always effective in steering juries away from prohibited inferences. In fact, as Justice Levin pointed out in dicta in his opinion for the Court in People v Giacalone, 399 Mich 642, 647, n 8; 250 NW2d 492 (1977), "[ajsking a jury not to draw an adverse inference . . . may underscore the inference; even if some or all the jurors had missed the inference, the instruction will draw it for them.” In People v Woods, supra, this Court based its ruling, in part, on an understanding that the jury ignored a judge’s instructions. At issue was whether the government had failed to fulfill its duty to correct a witness’ perjurious testimony that he had received no benefit in exchange for appearing as a witness. The prosecutor told the jury in opening argument that the witness was given a deal, but the witness testified he was given no consideration. The trial court properly instructed the jury that the prosecutor’s arguments were not to be considered as evidence, but this Court found that the jury probably ignored the witness’ lies and treated the prosecutor’s argument as evidence of the existence of a deal:

Jurors are well aware that informers are often, if not usually, given consideration for their testimony, and we believe that the trial judge’s instruction could not have prevented the jury from believ*43ing that [the witness] was given consideration for his testimony. [416 Mich 604.]

I would likewise conclude that the risk was too high that Manning’s jury could not follow the judge’s instructions to ignore the strong inference of guilt created by Luna’s plea and conviction.16

Had the trial court granted Manning’s motion and merely instructed the jury that Luna had pled guilty of an unspecified offense, the jury could have as easily inferred that Luna had pled guilty of carrying weapons or felony-firearm, and its verdict regarding Manning’s murder charge would not have been foreclosed. Although that instruction would also have been imperfect (and, indeed, would have allowed the jury also to infer that Luna had pled guilty of first-degree murder), it was a risk Manning was willing to take, and I believe it was error not to allow him to do so.

B

However, I agree that evidence of a witness’ conviction is often crucial to a jury’s evaluation of that witness’ credibility. This Court has consistently recognized that an accomplice’s or a witness’ guilty plea must be revealed to the trier of fact so that it may consider the witness’ bias or motive to fabricate adverse testimony in exchange for leniency in the resolution of any criminal proceedings then pending against that witness. See, e.g., People v Atkins, 397 Mich 163; 243 NW2d 292 (1976); People v Woods, supra; People v Standifer, supra.

Therefore, when facing the question whether *44and how a testifying codefendant’s guilty plea should be presented to a jury, we are confronted with a serious dilemma: on the one hand the admission of the evidence could seriously subvert the jury’s truth-seeking function, while on the other it could enhance that function.

I agree with the rule announced insofar as it can be construed to hold that the terms and details of an accomplice/witness’ guilty plea should not be revealed to the jury unless the defendant chooses to attack the witness’ credibility on the basis of that plea, or unless disclosure is necessary to prevent or rebut perjury. I think it is important to indicate, however, that this nondisclosure applies equally to the judge. The error committed here was not that the prosecution was allowed to cross-examine Luna about the plea, but that the trial court itself informed the jury that Luna had pled guilty of murder. I would prefer a rule which clearly stated that neither the judge nor the prosecution may inform the jury of the details of an alleged accomplice’s guilty plea unless and until the trial court inquires of defense counsel whether the plea will be the subject of cross-examination. The lead opinion comes close to stating such a rule, but I prefer more clarity.

There is no question that both the prosecution and the trial court must disclose the existence of a guilty plea agreement in an instance where a witness denies its existence. See People v Standifer, supra, People v Woods, supra, People v Rosengren, 159 Mich App 492; 407 NW2d 391 (1987), lv den 429 Mich 870 (1987), Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959), and Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972).17 However, while the prosecu*45tion bears the responsibility of preventing a witness’ false testimony from going uncorrected, this principle does not answer the question whether, aside from the instances of a witness’ perjury, the details of a codefendant’s plea should be disclosed, irrespective of whether disclosure would create the risk that a jury will find a defendant guilty by reason of his association with the admittedly guilty.

When a codefendant pleads guilty and testifies for the prosecution, I would hold that (1) the prosecution must disclose to the court and to the defense any consideration a witness/accomplice received in exchange for testimony and (2) it remains the defendant’s choice under MRE 60718 whether to impeach the witness through the introduction into evidence of the details of the witness’ guilty plea. The prosecution should not be allowed to inform the jury of the details of a witness/ accomplice’s guilty plea over the objection of the defendant so long as the defendant refrains from making that plea a subject of cross-examination. Upon the defendant’s request, the court should merely instruct the jury that the codefendant pled guilty. When some form of leniency is promised or given the witness, the court should inform the jury *46of the nature of any consideration given the witness in exchange for his testimony but should refrain from revealing the crime of which the witness has pled. Where a defendant seeks to attack the credibility of a witness on the basis of that witness’ bargain with the prosecution, however, the details of the plea may be disclosed.

By giving effect to the Rules of Evidence and examining the non-"existential”19 realities of a criminal trial, it becomes apparent why the defendant should have the choice whether to elicit for the jury the terms of a witness’ guilty plea. The clear language of MRE 607 reserves to the defendant the choice whether to impeach a prosecution witness. Furthermore, because the introduction of the terms of the guilty plea should hinge on whether the defendant attacks the witness’ credibility because of the plea, it logically follows that the defendant, better than the judge, will know whether he will pursue such impeachment. Because only the defendant is in a position to know whether evidence of a codefendant’s guilty plea will subject him unfairly to an inference of guilt by association, it should be the defendant’s prerogative whether to put that evidence before the jury.

I believe that, in the majority of cases, most defendants will opt for the disclosure of a witness’ guilty plea as a means to attack that witness’ credibility. However, as exemplified by the facts of this case, where the testifying witness was also a former codefendant who entered a guilty plea on the fifth day of the trial, the defendant may well have opted to impeach Luna’s credibility in a fashion other than the introduction of the guilty plea in order to minimize the risk of guilt by association.20

*47I fear the lead opinion’s holding does not articulate clearly enough the trial court’s duty to inquire of defense counsel whether a testifying accomplice’s guilty plea will be made the subject of cross-examination. The lead opinion cites federal precedent, but not the record, to support its notion that it was somehow clear to the trial judge that Manning’s counsel intended to cross-examine Luna on the basis of Luna’s plea after defense counsel requested that terms of the plea be kept from the jury. Such a finding must have been based on conjecture, rather than inquiry. The fact that the lead opinion upholds that ruling today implies that it is not necessary for a trial court to know that defense counsel will cross-examine a witness on the basis of the plea, but, rather, that a judge’s guess is sufficient basis for the introduction of extremely prejudicial evidence. The court should base its ruling upon an inquiry into the defense counsel’s strategy, and not upon conjecture. If defense counsel later seeks to impeach the witness on the grounds of the plea, then it is within the court’s discretion to inform the jury of the details of the plea or to allow the government to elicit the details on redirect examination.

My proposed rule presupposes that MRE 607(2) (A) is a valid rule of evidence which should be given force and effect. That the lead opinion dislikes this "voucher” rule is clear, but the issue of that rule’s validity is not before the Court today. Furthermore, the lead opinion’s reasons for abolishing MRE 607 in this case give no compelling reasons why the rule should be ignored in this case rather than abolished completely. In effect, the lead opinion would nullify MRE 607 and would do so disingenuously by making this very impor*48tant precedent in a case which does not raise the validity of that rule as an issue.

The validity of MRE 607(2)(A) is an academic issue in this case which, therefore, should be addressed by this Court only for very compelling reasons. I find no compelling reason to construe MRE 607, let alone modify it, particularly in light of the fact that the issue of that rule’s effect on this case was not argued in the trial court or in the Court of Appeals. The parties have never addressed this Court on that subject, either in briefs or at oral argument. If this Court wants to address the validity of MRE 607(2)(A), it should do so in a case where that issue is actually raised, briefed, and argued. See Kirby v Larson, 400 Mich 585, 658; 256 NW2d 400 (1977) (Fitzgerald, J., concurring in part).21

The purpose behind the disclosure of a witness’ acceptance of a guilty plea is to allow the jury to consider a witness’ believability and potential motive to fabricate because of a benefit promised or given in exchange for cooperation with the prosecution. Because it is the benefit received which triggers scrutiny of a witness’ motives, in cases where alleged accomplices testify for the prosecution and where the defendant objects to the introduction of the details of the witness’ plea, the court should inform the jury of the nature and extent of any consideration received without disclosing the specific offense of which the witness/ accomplice has pleaded. Because I agree that information regarding consideration given in exchange for testimony is important for the jury’s assessment of a witness’ credibility, I would adopt this *49rule which strikes a balance between warning the jury of possible bias and preventing convictions on the basis of the admitted crimes of another.

CONCLUSION

I would hold that the trial court erred in its refusal to grant a mistrial. I would further hold that where the defendant is fully aware of the details of a testifying former codefendant’s guilty plea, whether and how the details of that plea are disclosed to the jury remain the prerogative of that defendant.22I believe the prosecution and the trial court should only be required to disclose a witness’ guilty plea where its nondisclosure would allow a witness’ testimony to remain false, where defense counsel does not have specific knowledge of that agreement, or where a defendant attacks the witness’ bias because of the plea.

It is not required that the exact nature of the plea be disclosed to the trier of fact. Rather, upon disclosure, it should only be required that the jury be informed of the existence of a plea, and the nature of any consideration received by the witness in exchange for his plea and testimony without disclosing the precise crimes of which the witness/accomplice pleaded.23

Therefore, I find that upon the facts of this case, both the midtrial plea of the codefendant and the disclosure of the details of that plea unfairly prejudiced the defendant. Accordingly, I would reverse defendant’s conviction and remand to the trial court for a new trial._

*50Levin and Cavanagh, JJ., concurred with Archer, J.

Although Luna asserted that Morales left his home with the weapons in full view and placed them in the defendant’s car with the defendant’s knowledge, the defendant testified that he was not aware that Morales was armed until they arrived at the party, at which time he unsuccessfully attempted to disarm Morales and prevent the shooting.

Luna was eventually sentenced to a term of ten to twenty years for the second-degree murder conviction.

The trial court’s decision may be reversed upon a showing of abuse of discretion. People v Hampton, 407 Mich 354, 375; 285 NW2d 284 (1979); MCL 770.1; MSA 28.1098.

At the time Luna testified, he had not yet been sentenced. Accordingly, one can safely assume that Luna’s testimony was delivered under an expectation of leniency. The fact that Luna eventually received a term of only ten to twenty years as compared to the defendant’s sentence of mandatory life without parole supports this assumption.

Although I rely on Hurst as setting the standard for determining when a codefendant’s right to a fair trial has been compromised, I want to underscore the difference between the standard announced in Hurst for determining at the outset of a trial when separate trials are appropriate, and the standards applicable here, when midtrial it becomes apparent that a new trial is necessary to protect the rights of codefendants. While the standards for granting a mistrial and granting a severance are similar, there exists one fundamental distinction between the two: a motion for severance is based on a prediction regarding antagonistic defenses, while a motion for mistrial is based on an actual event at the trial which put the defendant’s substantial rights at risk.

Justice Scalia wrote for the majority in Cruz v New York, 481 US 186, 193; 107 S Ct 1714; 95 L Ed 2d 162 (1987), and held that the factors "deemed relevant in this area [are]: the likelihood that the instruction will be disregarded . . . the probability that such disregard will have a devastating effect . . . and the determinability of these facts in advance of trial . . . .” Cruz is a companion case to Richardson, relied upon by the lead opinion, though it conspicuously fails to mention its holding.

See also Cruz, n 6 supra.

The lead opinion correctly points out that Manning’s counsel did not object to the prosecution’s eliciting testimony on direct examination of Luna regarding the details of the guilty plea. There was, however, no reason for an objection once the judge informed the jury of the terms of the plea. Therefore, there is no reason for this Court to construe, let alone effectively abolish, the protections of MRE 607(2)(A). That rule is important in my analysis only to show that, had the trial court followed the teachings of Lytal and refrained from informing the jury that Luna admitted to "murder,” an appropriate ruling on a timely objection on MRE 607 grounds would have insured Manning’s ability to keep the details of the plea out of evidence.

I agree with the lead opinion insofar as it adopts a rule that can be construed as prohibiting introduction of an accomplice/witness’ guilty plea where a defendant chooses not to impeach the credibility of that witness on the basis of that plea.

MRE 401 defines "relevant evidence” as

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

See, e.g., MRE 407 (evidence of subsequent repair); MRE 408 (evidence of compromise and offers to compromise); MRE 409 (payment of medical and similar expenses); MRE 501 (privilege).

See Nesson, The evidence or the event? On judicial proof and the acceptability of verdicts, 98 Harv L R 1357 (1985).

Ante, p 14.

The prosecutor argued in rebuttal: "Mr. Manning wants to discount Mr. Luna’s plea of guilty to murder and say he was taking a sure thing. Ladies and gentlemen, ask yourself who in the world would plead guilty to murder if they didn’t do it?”

We recognize the fact that there may be aggravated circumstances in which the strongest corrective instruction would be insufficient, as, for example, where the guilty plea of one codefendant necessarily implicates another or others. [Baete at 783-784]

Federal cases, upon which the lead opinion largely rests, also support my reasoning. See, e.g., Bruton, supra at 135, regarding "the practical and human limitations of the jury system . . . .” See also Cruz, n 6 supra.

Further, as acknowledged by Justice Levin in his concurring *45opinion in People v Atkins, supra at 179-180, this duty is also incumbent under the rules of professional responsibility.

Rule 607 provides:

The credibility of a witness may be attacked by
(1) an opposing party; or
(2) the calling party if
(A) the calling party is the prosecutor and he is obliged to call the witness,
(B) in a civil case, the witness is an opposite party or employee or agent of an opposite party, or
(C) the witness’s testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party’s case.

See ante, p 19.

For a discussion of this problem on the federal level, see note, A *47prosecutor’s duty to disclose promises of favorable treatment made to witnesses for the prosecution, 94 Harv L R 887 (1981).

The lead opinion thinks this case raises the question of which party has the "right to draw first blood.” Ante, p 17. That question is clearly not before this Court. Defendant’s motion in the trial court did not request permission to impeach Luna first, but, rather, asked that the terms of Luna’s plea be kept from the jury.

Accord People v Evans, 30 Mich App 361; 186 NW2d 365 (1971); People v Love, 43 Mich App 608; 204 NW2d 714 (1972); People v Atkins; People v Tillman, 85 Mich App 425, 434; 271 NW2d 261 (1978); People v Woods; People v Standifer, supra.

Accord People v Lytal, supra.