(concurring in part and dissenting in part). I concur with the conclusions of the lead opinion — affirming defendant’s convictions but remanding to determine whether the testimony of the confidential informant should have been admitted — but disagree with the view that defendant’s Miranda1 claim need not be addressed.
On appeal, defendant argues that the trial court erroneously admitted into evidence admissions made at a disciplinary hearing because he was not given Miranda warnings before making the admissions. In People v Carr, 149 Mich App 653, 656; 386 NW2d 631 (1986), this Court held that ‘Miranda warnings do not apply at an administrative disciplinary hearing.” I agree with this conclusion for the reasons set forth in Carr. However, the Carr Court also held that, “[qjuite aside from Miranda, defendant is entitled to other Fifth Amendment protections.” Id. at 657. The Fifth Amendment provides, in pertinent part, that “No person .. . shall be compelled in any Criminal Case to be a witness against himself . . . .” US Const, Am V. The Carr Court found that inmates were compelled to speak at prison disciplinary proceedings:
*687Under current practice, inmates must make a “Catch 22” choice. They can either testify at the prison disciplinary hearing and incriminate themselves or forego the right to offer exculpatory or mitigating statements and face the potential penalties for prison misconduct based on evidence which they cannot refute or explain. . . . But if an inmate’s statements at the disciplinary hearing can be used against him in a subsequent criminal trial, it is likely that such statements will be withheld from the administrative hearing examiner for fear of being used against the inmate at a later time. The inmate ... is forced to forego a valuable defense. This constitutes an impermissible penalty for the exercise of the privilege against self-incrimination. Even the Department of Corrections Hearing Handbook states that, while Miranda warnings are not required, no statement made by a prisoner at the prehearing interrogative stage or at formal hearings is admissible at a subsequent criminal proceeding. [Carr, supra at 658-659. Citation omitted.]
The Carr Court concluded at 659:
In the present case, defendant’s admission at the disciplinary hearing actually served to reduce the severity of defendant’s discipline. The penalty defendant thereafter suffered for speaking out was conviction at a subsequent criminal proceeding on the underlying offense. In our opinion the proper remedy is adoption of the procedure announced in [People v] Rocha [86 Mich App 497, 512; 272 NW2d 699 (1978)], viz.: any evidence derived from testimony at a disciplinary hearing is inadmissible at subsequent criminal proceedings on the underlying charge, save for impeachment or rebuttal, and the accused must be advised before testifying at the disciplinary hearing that his testimony will not be admissible against him at a subsequent criminal trial on the underlying offense.
As a practical matter, I note that testimony that an inmate would consider providing at a disciplinary hearing as exculpatory of a misconduct charge is likely also to be exculpatory regarding any related *688criminal charges. The principal context in which an inmate’s disciplinary hearing testimony conceivably could be incriminating in a subsequent criminal trial is when the inmate decides to admit to a lesser misconduct charge in hopes of proving that he did not commit a more serious misconduct charge.
Whether the use, in a subsequent criminal proceeding, of testimony given in a disciplinary hearing violates the Fifth Amendment privilege against compelled self-incrimination turns on whether inmates are “compelled” to testify in disciplinary proceedings.2 The United States Supreme Court has observed: “ ‘The [Fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him.’ ” Minnesota v Murphy, 465 US 420, 427; 104 S Ct 1136; 79 L Ed 2d 409 (1984), quoting United States v Monia, 317 US 424, 427; 63 S Ct 409; 87 L Ed 376 (1943). 3 The Carr Court cited the following language from Baxter v Palmigiano, 425 US 308, 316; 96 S Ct 1551; 47 L Ed 2d 810 (1976), in support of its conclusion: “ ‘if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered “whatever immunity is required to supplant the privilege” and may not be required to “waive such immu*689nity.” ’ ” Carr, supra at 658. (Emphasis added.)4 The Carr Court then cited Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967), as an example of compulsion either “to testify or to face penalties for asserting [the] Fifth Amendment privilege to remain silent.” Carr, supra at 658. In Garrity, police officers were informed that they were subject to dismissal from their jobs if they refused to answer questions in the course of an Attorney General investigation, i.e., they were subjected to a direct penalty for asserting the privilege against compelled self-incrimination. See also Lefkowitz v Cunningham, 431 US 801; 97 S Ct 2132; 53 L Ed 2d 1 (1977) (statute that divested a party officer of his office for refusal to answer questions or failure to waive “use” immunity when subpoenaed to appear before a grand jury violated the Fifth Amendment). These cases involved direct compulsion to incriminate oneself in the form of direct penalties placed on assertion of the privilege.5
The United States Supreme Court, however, has also addressed the issue of compelled self-incrimination in situations in which a party is merely faced with a difficult tactical choice in deciding whether to assert this privilege as opposed to direct compulsion to waive it or a direct penalty on assert*690ing this privilege. In Williams v Florida, 399 US 78, 83; 90 S Ct 1893; 26 L Ed 2d 446 (1970), the Court held that “the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.” It stated, at 83-84:
The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State’s evidence may be severe but they do not vitiate the defendant’s choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However “testimonial” or “incriminating” the alibi defense proves to be, it cannot be considered “compelled” within the meaning of the Fifth and Fourteenth Amendments.
United States v Rylander, 460 US 752; 103 S Ct 1548; 75 L Ed 2d 521 (1983), involved contempt proceedings for failure to produce records for the Internal Revenue Service. The Court of Appeals had held that Rylander’s assertion of his Fifth Amendment privilege required the government to bear the burden of producing evidence demonstrating that Rylander was able to produce the documents in question. The Supreme Court held at 758:
[W]hile the assertion of the Fifth Amendment privilege against compulsory self-incrimination may be a valid ground upon which a witness such as Rylander declines to *691answer questions, it has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production. We think the view of the Court of Appeals would convert the privilege from the shield against compulsory seF-incrimination which it was intended to be into a sword whereby a claimant asserting the privilege would be freed from adducing proof in support of a burden which would otherwise have been his. None of our cases support this view.
We have squarely rejected the notion, apparently subscribed to by the Court of Appeals, that a possible failure of proof on an issue where the defendant had the burden of proof is a form of “compulsion” which requires that the burden be shifted from the defendant’s shoulders to that of the government.
In United States v One 1985 Plymouth Colt Vista, 644 F Supp 1546 (ND Ill, 1986), the court followed Rylander in the context of a forfeiture proceeding. There, the claimant contended that he could meet his burden of proof regarding evidence of non-drug-related sources of funds for the car at issue only by incriminating himself. The Plymouth Colt Vista court concluded that the claimant’s “dilemma”
is really no different from that faced by every criminal defendant forced to choose between complete silence and presenting a defense. By choosing silence the defendant incurs the risk the government, if it satisfies its burden of proof, will prevail. Yet that has never been thought to violate the privilege against self-incrimination. [Id. at 1552.]
The court further stated that Rylander stood for the proposition that the fact that a party must decide whether to remain silent in a hearing in which the burden of proof is less than proof beyond a reasonable doubt as required in a criminal trial does not constitute compulsion under the Fifth Amendment. Id. *692Rylander and Plymouth Colt Vista indicate that even when a party has the burden of proof on an issue, the party’s difficult decision whether to testify when the testimony could be used against him in a subsequent criminal proceeding does not constitute “compulsion” under the Fifth Amendment. A fortiori, a party’s similar decision in a setting where he does not bear the burden of proof (e.g., a prison disciplinary hearing, as is at issue here) would not constitute compulsion under the Fifth Amendment.
In Carr, as here, there is no indication that inmates were compelled to furnish testimony at prison disciplinary hearings. In disciplinary hearings, there is no direct penalty placed on an inmate’s assertion of the privilege against compelled self-incrimination. The hearing officer’s decision must be based on a preponderance of the evidence. MCL 791.252(k); MSA 28.2320(52)(k). Therefore, an inmate’s choice to remain silent will not automatically result in a determination that he has engaged in the misconduct with which he is charged; prison authorities must affirmatively satisfy the statutory burden of proof. See Baxter, supra at 317.6 The tactical decision that an inmate must make regarding whether to testify at a disciplinary hearing, when his testimony might potentially be used against him in a subsequent criminal proceeding, while perhaps quite difficult, does not constitute *693“compulsion” under the Fifth Amendment. Williams, supra at 83-84; Rylander, supra at 758.
That an inmate is faced with this tactical decision is distinguishable from placing a direct penalty on assertion of the privilege against compelled self-incrimination, as in Garrity and Lefkowitz. See Lefkowitz, supra at 808, n 5. In Carr, as here, the state did not threaten “to inflict potent sanctions unless the constitutional privilege [was] surrendered.” Lefkowitz at 805. Nor was assertion of the privilege “penalized so as to ‘foreclose a free choice to remain silent, and . . . [compel] . . . incriminating testimony.’ ” Murphy, supra at 434. (Citation omitted.) I am aware of the federal and state cases from other jurisdictions cited in the dissent that conclude that prison disciplinary proceedings compel waiver of the privilege against compelled self-incrimination or that require Miranda warnings at prison disciplinary proceedings.7 However, I am not persuaded by these cases because they fail to distinguish between a direct penalty on assertion of the privilege against compelled self-incrimination (e.g., that at issue in Garrity) and what is merely a difficult tactical decision that does not rise to the level of compelled self-incrimination.8 I *694instead focus on the language of the Fifth Amendment and on analogous United States Supreme Court cases fleshing out the parameters of the privilege against compelled self-incrimination. Accordingly, I am convinced that the current prison disciplinary proceeding structures do not compel inmates to testify in disciplinary proceedings and, therefore, that the Fifth Amendment privilege against compelled self-incrimination is not implicated by use of such testimony in a subsequent criminal proceeding.9 For these reasons, I believe that Carr was wrongly decided regarding this issue and should not be followed.10 What is at issue here is the admissibility of relevant evidence in a criminal proceeding. In the absence of a violation of a constitutional requirement, I do not believe that relevant evidence ought to be denied to the factfinder in such a proceeding. To do so here is to distort the meaning of constitutional language and thereby to diminish the ability of our criminal justice system to carry out its responsibility to the people of determining the truth about criminal activities.11
*695Here, it is not clear from the record whether defendant was advised at the disciplinary hearing that his testimony would not be admissible against him at a subsequent criminal trial on the underlying offense, as required by Carr.12I would accordingly remand for determination of whether defendant was so advised. If he was so advised, and such testimony was in fact later used against him, elementary notions of due process would require that his conviction be reversed, independent of any Fifth Amendment concerns. See People v Reagan, 395 Mich 306; 235 NW2d 581 (1975). However, if he was not so advised, reversal of his conviction would not be required because I believe that the Carr Court’s analysis of the Fifth Amendment issue was wrong.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
I note that, here, defendant claims that he entered a guilty plea at the disciplinary hearing “to avoid possible harm and inmate retribution.” However much these considerations might have contributed to making defendant’s decision a difficult one, the Fifth Amendment does not address “compulsion” derived from sources other than the government.
“[T]he Fifth Amendment . . . prohibits coerced or involuntary confessions. .. . [T]o ‘compel’ a suspect to become a witness against himself can only mean to ‘coerce’ a suspect to become a witness against himself.” Grano, Confessions, Truth, and the Law (Ann Arbor: The University of Michigan Press, 1993), p 135.
In Baxter, the inmate was advised that he was not required to testify at a prison disciplinary hearing but that his silence could be used against him; the Court concluded that allowing an adverse inference to be drawn from an inmate’s silence at a disciplinary proceeding was valid. Baxter, 425 US 320. The Baxter Court was not faced with the issue whether an inmate is “compelled” to speak at a prison disciplinary proceeding.
It is this type of direct penalty on assertion of the privilege against compelled seh-incrimination that the Garrity Court referred to as “a choice between the rock and the whirlpool.” Garrity, supra at 496.
See also Murphy, supra at 438:
If Murphy did harbor a belief that his probation might be revoked for exercising the Fifth Amendment privilege, that belief would not have been reasonable. Our decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.
I believe that this Court should carefully and respectfully approach issues regarding which our conclusions differ from those in a majority of other jurisdictions that have considered the same issues. However, our ultimate task here is not to “count noses” but to interpret the language of the constitution. As clearly stated above, I agree with Carr’s conclusion that Miranda warnings are not required in the noncriminal context of prison disciplinary hearings.
By respecting the distinction between direct compulsion to waive the privilege against compelled self-incrimination and mere indirect pressure to testify that creates a difficult tactical choice, I am seeking to accord reasonable meaning to the language of the Fifth Amendment. By effectively equating “compulsion” with a decision undertaken from among unattractive choices, the cases cited in the dissent create a slippery slope *694under which any vague psychological or emotional pressure to testify in a noncriminal proceeding could be deemed to constitute “compulsion” and therefore a violation of the Fifth Amendment. The result in each such instance is to deprive the factfinder in a criminal proceeding of relevant evidence relating to criminal conduct.
Carr states that the Department of Corrections Hearing Handbook indicates that no statement made at a hearing is admissible at a subsequent criminal proceeding. The Department of Corrections is free to articulate whatever policy it chooses in its handbook, but I do not believe that such policy is required by the state or federal constitutions.
I also note that Rocha, on which Carr is based, specifically stated that it was based “upon public policy rather than constitutional grounds.” Rocha, supra at 512.
I also find instructive Justice Boyle’s dissent from the summary order denying leave to appeal in People v Pacholka, 451 Mich 896 (1996), in which, in the context of Rocha, supra (probation revocation proceeding), she questions whether courts have the inherent authority to grant use *695immunity; Carr effectively grants use immunity to testimony given by an inmate in a disciplinary hearing.
The fact that defendant does not argue that he was specifically promised that any testimony he provided at the disciplinary hearing would not be used in a subsequent criminal proceeding suggests that he may not have been so advised.