(dissenting). We are asked in this case to consider two issues: Whether the trial court *94abused its discretion in finding that the Wayne County Prosecutor exercised due diligence in attempting to locate three witnesses for the defendant’s retrial, and whether evidence regarding the defendant’s prearrest silence was properly admitted. We would affirm the decision of the Court of Appeals.
I. FACTS
Defendant, Paul Dye, was charged with two counts of first-degree murder in the killing of two women whose bodies, with gunshot wounds to the head, were found by police officers in a vacant lot. Evidence indicated that the women had been killed at the headquarters of the Forbidden Wheels Motorcycle Club and that they had been shot at close range.
At trial, three members of the motorcycle club testified that the defendant, who at that time was president of the Forbidden Wheels, had murdered the women and had then enlisted their help in cleaning up after the killings and in covering up the crime. One of the witnesses, Bruce Seidel, asserted that he had been present at the time of the murder and had watched Dye shoot the women. Seidel testified that the women entered the motorcycle club headquarters at approximately 2:30 a.m. and began drinking. Some time later, according to Seidel, one of the women and Dye began discussing whether the woman would perform oral sex on Dye. Seidel further testified that after some minutes of discussion and argument, the defendant stated, "why bitch you will,” and, pulling a gun from his waistband, held it against her forehead and fired, at which point "[h]er head exploded.” Additionally, Seidel asserted that a few seconds later, when the other *95woman cried, "I don’t believe what’s happening,” the defendant responded, "I do,” and also shot her through the head. At that point, according to Seidel, Dye turned and stared at him for a short time, and then Seidel indicated that he would let two other members, Stephen Stever and James Dawson, who were sleeping upstairs, know what had happened.
Stever and Dawson also testified, corroborating Seidel’s story from the point that he appeared upstairs to announce that "Rocky1 just shot two women downstairs and he believed they were dead.” All agreed that they went downstairs and helped to clean up. Seidel testified that he helped Dye dispose of the bodies, which were dumped in a vacant lot, and that he had secreted the murder weapon in the clubhouse. Afterwards, the four gathered at Stever’s house. Dawson testified that Dye indicated to him that he shot the women because they were "a couple of fat cunts” and "they were fucking with me.” Stever indicated that he saw Dye holding the gun when he came downstairs and that later Dye "mentioned the fact that after he took out the first one, he had to take the second one and he looked over at Bruce and thought about shooting him too. Then, he would have to come upstairs and shoot both of us.” All three testified that Dye initially urged everyone to keep quiet and stick to their alibis. Dawson and Seidel also testified that on the day after the shootings they had another conversation in which they told the defendant they should seek the advice of an attorney, and defendant told them not to talk to a lawyer. It was claimed by defendant in his direct testimony at trial, however, that he, himself, had contacted a lawyer the day after the homicides and that he had arranged for a meeting *96of the club members with the attorney, and he and the attorney had agreed that "he was going to set up a meeting between the homicide detectives, in charge of the case and each and each [sic] and every club member to make a statement to the homicide detectives.” Dawson, Stever, Seidel, and two other witnesses, Richard Troher and Wilfred David, did arrange through an attorney to give statements to the police. A decision was made not to charge Seidel, Dawson, or Stever, who were kept in "protective custody”2 for four days before trial.3
At trial, the defendant took the stand and testified that it was Seidel who committed the killings. According to the defendant, he, Seidel, Dawson, and Stever had "agreed to conceal the whole incident.” The defendant had not previously made any statement to this effect.
The jury was unable to reach a verdict at the first trial, and the judge declared a mistrial. On May 13, 1983, a new trial date of August 22, 1983, was set. On June 2, 1983, according to the police sergeant in charge of the case, the police and assistant prosecutor began efforts to locate Seidel, Stever, and Dawson. By the time of trial, these efforts had proven fruitless and a motion was made to allow the first trial testimony of the three witnesses to be read into evidence under MCL 768.26; MSA 28.1049 and MRE 804(b)(1).
The trial judge conducted a hearing to determine whether the prosecutor had exercised "due diligence” in attempting to locate and produce the witnesses as required for the admission of the *97prior testimony. The trial court found in the prosecutor’s favor and allowed the testimony of Seidel, Dawson, and Stever to be read at trial. The jury convicted Dye of two counts of first-degree murder and two counts of possession of a firearm during the commission of a felony. Dye was sentenced to life imprisonment. The Court of Appeals affirmed the conviction, and we granted leave to appeal.
II. DUE DILIGENCE
The Supreme Court of the United States in Barber v Page, 390 US 719, 725; 88 S Ct 1318; 20 L Ed 2d 255 (1968), held that a witness is "unavailable” for the purpose of an exception to the confrontation requirement if "the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”4 In Michigan, MCL 768.26; MSA 28.1049 provides:_
*98Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony, can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.
This Court in People v McIntosh, 389 Mich 82, 87; 204 NW2d 135 (1973), noted that "the statute must be interpreted in a manner consistent with prevailing constitutional authority.” The "good faith” requirement of Barber has consistently been viewed in Michigan as mandating that prosecutors exercise "due diligence” in their attempts to produce witnesses before prior testimony is admissible. McIntosh, supra; People v Starr, 89 Mich App 342; 280 NW2d 519 (1979).5
As Judge Riley noted in Starr, p 345, case law in this state makes it clear that
*99[t]he determination of due diligence is a matter for the trial court, and that determination will not be overturned on appeal unless a clear abuse of discretion is shown.
It is also clear, as defendant points out in his brief to this Court, that "[w]hat efforts will actually constitute due diligence cannot be set out in a hard and fast list, given the many variables possible in a given case.”
The opinion for reversal characterizes the prosecutor’s efforts as tardy and incomplete. This conclusion is based in part on the observation "that [the witnesses] had been difficult to locate for the first trial,” and that during the two-month period between the mistrial and setting of the trial date "the prosecution made no effort to relocate [them] even though [he] knew [they] were needed, and they had expressed an intention to leave the state . . . .”
In point of fact, there is no record basis for the statement that the witnesses had been difficult to find for the first trial. The record does establish that the prosecution knew for over a year that Seidel resided in Mason City, Iowa, with his mother, that the prosecutor had actually had contact with Dawson "a number” of times between the first trial and the setting of the second trial, and that the prosecutor had addresses for all three that had presumably led to their production at the first trial. Thus there is no basis for the suggestion that the prosecutor had a reason to try to locate these witnesses during the two-month period prior to the setting of the trial date, much less a reason to "relocate” them before he knew when they would be needed for retrial.
Indeed, what the record suggests is that it was Seidel’s failure to respond to messages left with his *100mother at his known residence prior to July 7 and the prosecutor’s learning on July 12 that Dawson’s local number was disconnected, that triggered the suspicion that the witnesses might be difficult to locate. Thus, contrary to the suggestion that the two-month delay in prosecution efforts (from March 17 to May 13) is somehow related to the good-faith efforts of the prosecutor, the relevant inquiry is the prosecutor’s efforts made during the period between the setting of the trial date and the date of trial. I can find no basis in this record for concluding that the trial judge abused his discretion in finding that these efforts were neither "tardy” nor "incomplete.”
The majority’s conclusion that the effort was "tardy” is further refuted by the fact that efforts to locate Seidel began within three weeks of the setting of a new trial date and more than two and one-half months before that date. Moreover, the conclusion that the efforts were "incomplete” misfocuses the constitutional test of whether evidence that otherwise satisfies the Confrontation Clause is admissible in a subsequent proceeding. The constitution does not require that the prosecutor undertake every conceivable " 'affirmative measure[ ];’ [that] may well have produced the witnesses” in order to satisfy constitutional scrutiny. The Supreme Court has made clear that the "law does not require the doing of a futile act” when testing the diligence of the state’s effort to secure a missing witness. Ohio v Roberts, 448 US 56, 74; 100 S Ct 2531; 65 L Ed 2d 597 (1980). The test is whether the proponent of the evidence made good-faith efforts to procure the testimony, not whether more stringent efforts would have produced it. Barber v Page, supra. "The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” California v Green, 399 US 149, *101189, n 22; 90 S Ct 1930; 26 L Ed 2d 489 (1970) (citing Barber).
Thus, we must view this case on its own merits to determine if the finding of "due diligence” by the trial court " 'evidences . . . not the exercise of judgment but defiance thereof ....’” People v Talley, 410 Mich 378, 387; 301 NW2d 809 (1981). On the facts of this case, we cannot so find.
The evidence of "due diligence” presented to the trial court details the prosecutor’s efforts to produce Stever, Dawson, and Seidel. According to Sergeant Kuhnlein, who was in charge of the case, the attempt to locate Bruce Seidel began on June 2, 1983,6 when an lein message was sent to a police officer in Mason City, Iowa, where Seidel was known to frequently stay with his mother and where he was living during the first trial. This officer went to the home and talked to Seidel’s mother who told him that her son was working out of town, but that she would give him the message to call Sergeant Kuhnlein. After several unsuccessful attempts to reach Mrs. Seidel by phone, on June 22, 1983, another Detroit police officer completed a call to Mrs. Seidel at 3:00 a.m. She again informed the officer that her son was out of town working, but that she would tell Seidel *102when he returned. When Seidel did not call, the prosecuting attorney in Mason City, Iowa, was called and a subpoena sent to enlist his help in locating the witness. On August 5, pursuant to the interstate witness act, MCL 767.91 et seq.; MSA 28.1023(191) et seq., the Wayne County Prosecutor’s Office sent a package containing the following information to the Mason City County Attorney’s office: a certificate to secure the attendance of a witness from without the State of Michigan in a criminal proceeding, an affidavit for certificate, a certificate of the judge of the Recorder’s Court, and a certificate of the clerk of the court for attendance. On August 11, an arrest warrant was issued for Seidel. His girlfriend and his mother were again contacted, as was a biker’s establishment. A picture was sent on August 16. Follow-up calls were made to determine if the packets had been received and to check on the progress.
With regard to James Dawson, the assistant prosecutor testified that he had been in telephone contact with the witness until late June or early July. Dawson, in communication with the prosecutor’s office because of reports that the defendant was being allowed out on bail between the first and second trials, had been informed of the trial date.7 Sergeant Kuhnlein reported that on July 6, 1983, he contacted Dawson’s mother who stated that she did not know where her son was. On July 12, 1983, the prosecutor attempted to call Dawson, but found that the telephone service had been disconnected. On August 1, 1983, Sergeant Kuhnlein went to Dawson’s last known local address, but found that the home had been sold and that the new owner did not know of the witness’ whereabouts. Sergeant Kuhnlein then contacted the post office and received a tentative new address in San *103Bernadino County, California. On August 5, 1983, an out-of-state witness packet was mailed to the San Bernadino Prosecutor’s Office, followed by a picture on August 16, 1983. In the meantime, follow-up calls determined that at least two attempts had been made to serve Dawson at the address, but the San Bernadino Prosecutor’s Office had been informed that he was not there at that time. The assistant prosecutor indicated that he would appreciate any further investigation they could do and that any information obtained before August 26, 1983 (the trial was expected to last at least four days) should be passed on.
Sergeant Kuhnlein, in his attempt to locate Stever, first asked Dawson’s mother for information and then attempted to serve a subpoena at his local address on August 1, 1983. A tenant who was living at the address informed him that the house was in foreclosure and he had no idea as to the whereabouts of Stephen Stever. The tenant did not pay rent to Stever, but had previously given it to someone who came by to pick it up. Attempts were made to find a forwarding address for Stever at the post office, but none was on file. On August 5, 1983, a packet of materials in conformity with the interstate witness act was sent to Overton County, Tennessee, where Stever was known to occasionally stay, although no street address was known. A picture was sent on August 16, 1983. Follow-up calls determined that the Overton County officials had been unable to locate Stever.
In addition to these efforts, Sergeant Kuhnlein checked all of the jails, morgues, and hospitals in Wayne, Oakland, and Macomb counties and contacted the Michigan Employment Security Commission and the Department of Social Services. The utility companies were also called for any forwarding addresses, but none were known.
*104The lead opinion suggests that the prosecution should have taken further efforts to secure the missing witnesses such as sending its own investigator out of state to seek them out, urging the out-of-state authorities to exert further efforts, or suggesting that locales frequented by bikers be checked. This observation ignores the fact that the test for admissibility under the Confrontation Clause is the good-faith effort of the prosecution, not whether extraordinary efforts might have been made.8 Local police obviously have no authority to direct the efforts of the foreign jurisdiction in locating a missing witness, and local resources would just as obviously not permit sending local police out of state in every similar instance. It is clear that what Barber v Page requires is a good-faith effort to notify witnesses and secure their attendance, not an all-out manhunt. Thus, as the Court observed in finding compliance with the duty of good faith in Ohio v Roberts, supra, p 75 "[t]o be sure, the prosecutor might have tried to locate by telephone the San Francisco social worker . . . and might have undertaken other steps in an effort to find [the witness]. One, in hindsight, may always think of other things.”
It is only in hindsight, and by the suggestion of "other things,” that the majority concludes that the trial court abused its discretion in finding due diligence on the part of the prosecution.9 It is *105obvious in retrospect that the witnesses were avoiding appearance. The prosecutor attempted to locate Seidel, Stever, and Dawson through their known local addresses, and sent packets in conformity with the interstate witness act for all three witnesses to the only other locations at which the evidence indicated they might be found. Follow-up calls were also made to try and secure the cooperation of the out-of-state prosecutors. Under these circumstances, "due diligence” could reasonably be found in this case, and we would affirm the decision of the trial court in this regard.10
III. prearrest silence
Defendant also contends that several questions regarding his prearrest conduct denied him his rights under the Fifth Amendment of the United States Constitution and article 1, § 17 of the Michi*106gan Constitution. Specifically, defendant contends that prosecutorial questioning of witnesses Richard Troher and Wilfred David concerning the fact that Mr. Dye had not told them anything about the incident, and testimony from witnesses Dawson, Stever, Seidel, and Troher that defendant had not accused someone else of the crime was an erroneous comment on defendant’s silence.11 Defendant also contends that testimony of Seidel, David, and Troher that defendant did not go with them to see an attorney and a statement by Troher that Mr. Dye did not go with them when he and David gave a statement to the police were improperly admitted.
To properly understand defendant’s claim of error it is helpful to distinguish between prearrest and postarrest conduct. At both trials the defendant suggested that he had intended to contact the police prior to his arrest. He also testified on direct examination by his own counsel that after his arrest he had given a statement to the arson investigator that Stever and Dawson had committed the fire bombing. He added in response to a further question by his counsel in direct examina*107tion, that he had not made a post-arrest statement regarding the homicides on the advice of his attorney. Over counsel’s objection, on cross-examination the defendant was asked why, if he was only a material witness in a homicide, he had given a statement accusing Stever and Dawson, but had declined to give a statement regarding the homicide. He indicated that on the advice of counsel he declined to discuss the events surrounding the homicide, but though his counsel had advised against it, he had decided to give the statement to the arson investigator.
Thus, analysis of defendant’s argument must begin by identifying two discrete categories of claims, questioning by the prosecution regarding prearrest conduct and questions regarding postarrest silence which were initially brought out by defendant himself.
Error in the context of defendant’s prearrest conduct could, under People v Collier, 426 Mich 23; 393 NW2d 346 (1986), only be predicated on the basis of relevancy. By contrast, error in the prosecutor’s examination regarding postarrest silence, if any, would be predicated upon the rule of Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), where the Court held that use of postarrest, post -Miranda warning silence for impeachment was "fundamentally unfair and a deprivation of due process . . . .” Id. at 618.
A
As to defendant’s postarrest silence, that line of questioning was initiated by defense counsel on direct examination of the defendant. As noted by the trial court and the Court of Appeals, once the defendant had testified regarding his decision to speak with the arson investigators, the door had been opened to further inquiry on cross-examina*108tion as to postarrest conduct inconsistent with defendant’s other postarrest statement. People v Gibson, 71 Mich App 543, 547-548; 248 NW2d 613 (1976). Once defendant raises the issue of postarrest conduct during his direct testimony, he cannot then complain that the prosecutor’s cross-examination on this subject was error. In such a context, the impeachment does not amount to use of the defendant’s silence in violation of the implied promise of Miranda warnings because defendant has not remained silent, but has chosen to speak after having received the warnings. The impeaching inquiry is not an inquiry concerning silence, but an inquiry concerning a postarrest statement.12
B
The line of inquiry regarding the facts of defen*109dant’s prearrest conduct was initiated by the prosecution in its case in chief. However, testimony from Seidel, Dawson, and Stever concerning the fact that defendant had not accused someone else of the crime can neither be considered comment on defendant’s prearrest silence nor irrelevant under the Collier analysis. While in the presence of Seidel, Dawson, and Stever, the defendant had admitted to the killings in response to a question by Dawson. In this context, a failure to deny guilt is not an inquiry concerning silence, but an inquiry concerning a prearrest statement. Properly characterized, the inquiry, is understood as asking whether defendant had said anything inconsistent with his admission of guilt, see United States v Samples, 713 F2d 298 (CA 7,1983).13
Likewise questions concerning defendant’s failure to accompany Seidel, Dawson, Stever, Troher and David when they went to see the lawyer was not comment on his silence. Defendant testified at both trials that he had in fact been in contact with an attorney and that it was he who had set up a meeting between the attorney and the club membership:
It was arranged between me and him [sic], he was going to set up a meeting between the homicide detectives in charge of the case and each and each [sic] and every club member to make a statement to the homicide detectives.
The thrust of defendant’s testimony was that his *110failure to go with his attorney to the police was only due to the fact that he had been arrested before such a meeting took place. He further explained that he had maintained his silence in an effort to protect Dawson, Stever, Seidel and himself.
Significantly, no objection was made by defense to either line of inquiry, presumably because the only objection that could have been interposed was relevancy14 and defense counsel anticipated that, as in the first trial, defendant’s prearrest contact with the attorneys would be used affirmatively in his own defense to buttress his claims that he was attempting to protect his more culpable friends.
A review of the trial transcript covering the testimony of Dawson and Seidel clearly indicates that the defendant intended to use his prearrest conduct with the attorney to support his claim that he was not the shooter. Defense counsel did not object to questions put to Dawson, Seidel, and Stever. On cross-examination of Dawson and Seidel counsel questioned their knowledge of the defendant’s independent contact with the lawyer on the day after the shootings.15 This point had not *111been brought out on direct examination and clearly was an attempt to buttress defendant’s theory before he took the stand to testify. Defense counsel having developed the theme that it was defendant who had initiated the contact with counsel, it would have been reasonable to expect that if defendant were merely an accessory to the crime, he would have come forward with his version of the incidents, as the others did. Thus, the prosecutor’s inquiry to Troher as to whether defendant ever went down to the police station was a question asked to make "less probable,” Collier, supra, the inference that the defense sought to draw, that prearrest conduct indicated his innocence of the homicides.
c
The opinion for reversal fails to distinguish between the relevancy issue presented by defen*112dant’s prearrest conduct and the constitutional question presented by defendant’s postarrest silence. The opinion, thus legally and factually confuses the defendant’s prearrest failure to accompany Dawson, Stever, and Seidel when they went with their attorneys to the police, with his postarrest refusal to give a statement regarding the homicide. It states:
Dye on direct examination testified that he did not make a statement to the police because his attorney advised him not to do so. The prosecution asserts that because Dye offered this testimony, the prosecution could have subsequently offered impeaching testimony, and therefore — even if the prosecution improperly included the testimony in its case in chief — any error was harmless. [Ante, p 82.]
This statement is incorrect. The prosecution did not make any inquiry in its case in chief regarding Dye’s prearrest failure to make a statement, Dye’s failure to make a postarrest statement to the homicide investigator, or his postarrest statement to the arson investigators.
When Dye testified on direct examination that he had made a statement to the arson investigators, there may have been an incidental rebuttal effect to any negative inference from his failure to pursue his contact with his attorneys, but its principal purpose was clearly to establish that the firebombing committed by Dawson and Stever was the motivation for the homicides. If the reason for this offering was to rebut evidence that Dye had not gone with the others to make a statement, rebuttal could have been confined to the fact of making a postarrest statement. Instead, for sound strategic reasons, defendant Dye recited the details of his postarrest statement to the arson investiga*113tors, details that served not to explain his silence, but to accuse his accusers.
The defendant’s explanation regarding his failure to make a statement concerning the homicides when asked by the arson investigator pertained solely to his postarrest conduct. The prosecutor did not allude to defendant’s postarrest conduct at any point in his case in chief.16 Defendant’s failure to make a statement to the homicide investigator was brought out by defense counsel in anticipation of the fact that the prosecutor would, as he did, allude to it during cross-examination.
In sum, defendant’s statement that he did not make a statement regarding the homicides was not offered to rebut testimony from Dawson, Stever, and Seidel concerning his prearrest conduct. It was elicited by defense counsel after defendant had testified that he gave a statement incriminating the others in the firebombing in an attempt by *114his own counsel to explain omissions in his postarrest behavior in order to buttress the defendant’s testimony that the others were guilty.
D
Finally, with regard to Troher and David, who were not present at the time of the shootings and possessed firsthand knowledge only concerning the murder weapon, defendant argues that questions of these two witnesses regarding whether defendant denied his guilt were irrelevant in that he possessed no duty to disclose to them his knowledge of the crimes, and, given his part in the coverup, it would not have been natural for him to do so. Silence in this instance, the defendant claims, is inherently ambiguous and of little probative value.
For the purpose of deciding the remaining claims of error concerning the testimony of David and Troher, we assume arguendo under People v Collier, supra, that the trial judge erred in permitting the prosecutor to question these witnesses concerning defendant’s prearrest conduct. We note, however, that defendant did not object to the disputed testimony at trial. In the absence of a timely objection, the issue is deemed waived, and "appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice.” People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977); MCL 769.26; MSA 28.1096. After thorough review of the record, we cannot conclude that a miscarriage of justice would result in this instance.
In People v Collier, we held that People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), was not applicable to impeachment by silence which occurred before any contact with police officers. We held that, consistent with the Supreme Court’s ruling in Jenkins v Anderson, 447 US 231; 100 S *115Ct 2124; 65 L Ed 2d 86 (1980),17 the decision to admit prearrest silence is evidentiary, to be resolved by reference to its relevancy and in light of its probativeness as opposed to its potential for prejudice, MRE 403.18 Assuming arguendo that defendant’s failure to deny guilt was not relevant *116evidence, we nevertheless conclude that two references to this fact did not result in a miscarriage of justice. We note that the defendant’s silence was consistent with the defense theory of a conspiracy to withhold information from the police. We also note that an eyewitness testified regarding defendant’s commission of the murders, that two other witnesses testified that defendant had admitted the killings, and that these comments constituted only two brief references in the course of a trial stretching nearly two weeks and filling over 1300 pages of recorded transcript.19
Finally, the lead opinion has concluded that defendant is entitled to a new trial. On retrial, regardless of whether defendant states in limine his intention to testify, two points should be noted. First, as to the retrial the defendant has not yet waived his Fifth Amendment right to remain silent. However, with regard to his prior testimony, having voluntarily chosen to testify at the former trial defendant has waived his Fifth Amendment rights as to such proceeding and objection to use of his former testimony will not lie on that ground.20
CONCLUSION
We would hold that, on the facts of this case, the trial court did not abuse its discretion in finding due diligence in the prosecution’s efforts to locate the missing witnesses. We would further hold that *117the evidentiary errors alleged by the defendant did not result in a miscarriage of justice. The decision of the Court of Appeals should be affirmed.
Riley, C.J., and Griffin, J., concurred with Boyle, J."Rocky” was Dye’s club nickname.
They were kept at a Detroit area motel under assumed names where their meals and room receipts were paid by the prosecution. While they were not allowed to leave until after they testified, they were not under arrest as material witnesses pursuant to MCL 767.35; MSA 28.975.
Upon the conclusion of their testimony, they were given airfare to their previous places of residence outside Michigan.
Justice Levin relies upon that Court’s earlier decision in Motes v United States, 178 US 458, 471, 473-474; 20 S Ct 993; 44 L Ed 1150 (1900), which held that the defendant was denied his right of confrontation under the Sixth Amendment when the failure to produce a key witness for the prosecution was due to the negligence of a governmental agent. The Court opined:
[T]he admission in evidence of Taylor’s statement or deposition taken at the examining trial was in violation of the constitutional right of the defendants to be confronted with the witnesses against them. It did not appear that Taylor was absent from the trial by the suggestion, procurement or act of the accused. On the contrary, his absence was manifestly due to the negligence of the officers of the Government. Taylor was a witness for the prosecution. He had been committed to jail without bail. We have seen that the official agent of the United States in violation of law took him from jail after the tried of this case commenced, and, strangely enough, placed him in charge not of an officer but of another witness for the Government with instructions to the latter to allow him to stay at a hotel at night with his family. And on the very day when Taylor was called as a witness, and within an hour of being called, he was in the corridor of the court house. When called to testify he did not appear.
*98In the present case there was not the slightest ground in the evidence to suppose that Taylor had absented himself from the trial at the instance, by the procurement or with the assent of either of the accused. Nor (if that were material) did his disappearance occur so long prior to his being called as a witness as to justify the conclusion that he had gone out of the State and was permanently beyond the jurisdiction of the court. His absence, as already said, was plainly to be attributed to the negligence of the prosecution.
In this case the facts do not suggest governmental conduct even approaching that of Motes. There is nothing of record to demonstrate that the absence of Dawson, Stever, and Seidel subsequent to the first trial was the result of any illegal police activity, or of the prosecutor’s negligence, unless it is suggested that the prosecutor had an obligation to detain these witnesses in the state until completion of the second trial. Consequently, Motes is distinguishable and the inquiry remains whether the reviewing court can find a "good faith” effort on the part of the state to produce the witnesses at trial.
The majority relies exclusively on the "good faith” standard of Barber, and does not find an independent basis for their conclusion under Michigan law. Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983).
Defendant claims that a finding of due diligence is precluded in this case because the prosecutor’s office did not begin its efforts to locate the three witnesses in adequate time to assure their production at trial. The timing of the efforts is only one of the factors which should be considered in the totality of the circumstances of each case. It is conceivable, for example, that a search begun six months before trial, if nothing other than a cursory or pretextual investigation is done, could be inadequate, while a thorough search, commenced a few weeks before trial, could adequately evidence due diligence. In this instance the record indicates that the new trial date of August 22, 1983, was set on May 13, 1983, and the prosecution began efforts to reach Seidel, the only eyewitness, and therefore the most crucial witness for the state, on June 2, 1983. There is, moreover, no basis for the conclusion that it had clearly been established by July 7 that Seidel was missing. His mother’s responses indicated only that he was working midnights out of town.
Defendant was released on bond on June 17,1983.
It also ignores the fact that a biker’s locale was checked in Mason City and that the prosecutor testified that he spoke with the state’s attorneys in all three jurisdictions and asked them "to make whatever efforts they could.”
Justice Levin relies upon the decision of the Illinois Court of Appeals in People v Payne, 30 Ill App 3d 624; 332 NE2d 745 (1975), for the proposition that good faith was lacking in this instance. The basis of the Court’s decision in Payne was:
The responsibility for the conduct of the People’s case rests with the State’s Attorney, and not with the police. It is his duty *105to supervise and coordinate the efforts to locate the witness known to be missing. This record discloses an absence of any such supervision or coordination. [Id., 628.]
The record in Payne indicated that the prosecutor had done nothing to assist in locating the missing witness and had left that task to the indiscriminate efforts of a single police officer.
Unlike the circumstances in the instant case, the prosecutor had made no effort to locate this witness, and it was this fact, the complete failure of the prosecutor to supervise and coordinate the search effort, which lead the Illinois Court of Appeals to conclude that "good faith” on the part of the state was lacking in that instance.
Defendant asserts, without presentation of any factual evidence, that the assistant prosecutor should not be found to have exercised due diligence in this case because, "the prosecution had contributed to the absence of at least one or more of the witnesses.” "[A]ppellant [may not] simply . . . announce a position or assert an error and then leave it up to the [appellate] Court to discover and rationalize the basis for [appellant’s] claims . . . .” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). In this regard, we also note that the appellee contends that it was the release of the defendant on bail pending the second trial which caused the witnesses to disappear. All three had previously expressed fear of defendant.
After People v Collier, 426 Mich 23; 393 NW2d 346 (1986), it is apparently incorrect to phrase the alleged error as comment on silence. Rather, the inquiry is evidentiary and asks whether the evidence sought to be introduced is relevant, that is whether it makes "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.” MRE 401. See Collier, supra, p 36.
Thus, prearrest silence is not to be presumed an exercise of the Fifth Amendment. Where prearrest silence is relevant, as for example where a defendant has made an admission by adoption or manifestation of belief in the statements of others, MRE 801(d)(2)(B), admission of the evidence places no more burden on the defendant’s decision to testify than does any other part of the prosecution’s proofs. In this case, the defendant, having taken the stand in the first trial and testified concerning his pre- and postarrest conduct, waived any Fifth Amendment claim with regard to use of his prior testimony at the second trial. Absent a showing that prearrest silence constituted an exercise of his constitutional rights, the preliminary admissibility of this evidence is to be resolved at trial by use of the evidentiary rules adopted in Collier.
This point was illustrated by the United States Supreme Court in Anderson v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 227 (1980). In that case the defendant was charged with first-degree murder after having been arrested while driving the decedent’s automobile and possessing some of his clothes. After receiving Miranda warnings, the defendant told the police that he had stolen the car in Ann Arbor near Washtenaw and Hill Streets approximately two miles from the bus station. At trial he testified on direct examination that he had taken the car from the parking lot of the Kelly Tire Company which is next to the bus station and directly across the street from defendant’s jail cell window. On cross-examination, the prosecutor asked defendant if he had in fact stolen the car from the Kelly Tire Company parking lot why did he not tell this story to the police at the time of his arrest.
The Court determined that the state’s questioning of the defendant concerning this inconsistency did not amount to error under Doyle v Ohio because the alleged error was simply inquiry into a prior inconsistent statement. "Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” 447 US 408. Concluding that Doyle did not apply in that instance the Court stated that “[ejach of two inconsistent descriptions of events may be said to involve 'silence’ insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of 'silence,’ and we find no reason to adopt such a view in this case.” Id., p 409. See also 3 Weinstein, Evidence, ¶1 607[06], p 607-98, n 28.
We note that the federal courts hold that the defendant bears the burden of proving an intent to comment or, alternatively, that the jury would naturally so construe the prosecutor’s inquiry or argument, United States v Blankenship, 746 F2d 233 (CA 5, 1984); United States v Riola, 694 F2d 670 (CA 11, 1983); Spalla v Foltz, 788 F2d 400 (CA 6, 1986). Nor can it be said that questions pertaining to defendant’s failure to go to the hearing may be characterized as comment on defendant’s silence.
Having taken the stand in the first trial and testified to his prearrest contacts with the attorney, defendant had waived his Fifth Amendment privilege with regard to such testimony in the second trial. Harrison v United States, 392 US 219; 88 S Ct 2008; 20 L Ed 2d 1047 (1968).
While Seidel indicated that he had no recollection of the defendant having visited the attorney with Stever on Sunday, Dawson, when questioned by defense counsel stated:
Q. Okay. When you were at Mr. Dye’s house for this corn roast, you recall a time when he made a phone call to an attorney?
A. Yes.
Q. You recall that same night he and Mr. Stever went to meet the attorney?
A. Yes.
Q. Okay. Well, now, I thought I understood your direct *111testimony this morning to indicate that you had to keep pushing Mr. Dye, even into Monday night to call an attorney?
A. He went to the attorney’s house to pick up some club property that had been taken from there.
Q. My point, sir, is you just now told us that he called the attorney on Sunday while you were there and he and Mr. Stever went to see the attorney, you were not present?
A. No, I wasn’t.
Q. Okay. I am asking how you kind of reconciled that with your earlier testimony that as late as Monday night you were pushing him to call an attorney?
A. To go explain what had happened.
Q. But he had already seen the attorney?
A. But didn’t explain what had happened, to my knowledge.
Q. You didn’t know?
A. To my knowledge.
Q. So you really don’t know whether that attorney was already working on it?
A. No, there is no way I could.
Q. Of course not. I am not blaming you for that, but I do think we ought to clear it up.
A. Yes.
In fact the prosecutor does not argue that because Dye offered this testimony, the prosecution could subsequently have offered impeaching testimony and therefore, even if the prosecution improperly included the testimony in its direct case, because the prosecution could have held the testimony to impeach, any error was harmless.
Rather, the prosecution argues as to prearrest conduct that "the prosecutor did inquire of witness Troher if the defendant ever went down to the police station or if the defendant spoke with the witness about the incident [but that] it was the defense who elicited the fact that Dye did not make any statements to the police,” appellee’s brief, p 21.
Nor does the prosecutor argue that response to post-arrest silence by the prosecution could be justified as anticipatory impeachment. Rather the prosecution asserts that which the record establishes, viz.,
that the prosecutor did not elicit any testimony concerning the defendant’s post-arrest silence following the giving of Miranda rights and the invocation of the right to remain silent .... It was the defense who elicited the fact that the defendant was given Miranda warnings and that he asserted the right to remain silent upon the advice of counsel . . . the defendant elected to place such evidence before the jury by way of an explanation and cannot now complain if the results were miscalculated. [Id., pp 20-21.]
In Jenkins, the Court held that a defendant may be impeached with silence where the silence preceded the arrest and the Miranda warnings. The Court engaged in a two-step analysis, finding, first, no impermissible burden on a constitutional right, and, second, that the prearrest silence was probative.
The Court concluded that the Fifth Amendment was not burdened by such impeachment of a testifying defendant because the defendant had waived the privilege against self-incrimination by taking the stand. The Court also found that since no governmental action had induced the defendant to remain silent before arrest, the fundamental fairness guarantee of the Fourteenth Amendment was not violated. See also Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982), and Anderson v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 222 (1980) (due process not violated by impeachment with postarrest, pre-Miranda silence).
In this instance, we are not here confronted with a situation in which silence was offered against a nontestifying defendant. Defendant took the stand and waived his Fifth Amendment privilege with respect to the crime charged, anno: Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 ALR2d 1404. Once the defendant testified that he had initiated the contact with the attorney and that he would have been willing to make a statement, questions regarding his failure to go to the attorney or to the police would clearly have been permissible on cross-examination under Jenkins. Jenkins clearly established that the use of prearrest silence for impeachment purposes does not, in and of itself, violate the federal constitution. See, generally, 1 LaFave & Israel, Criminal Procedure, § 9.6(a), pp 774-775.
As the Court observed in Fletcher v Weir, supra, 455 US 604, n 1:
During cross-examination, the prosecutor also questioned respondent concerning his failure prior to his arrest to report the incident to the police and offer his exculpatory story. Relying on our decision in Jenkins v Anderson [supra], the Court of Appeals correctly held that there was no constitutional impropriety in the prosecutor’s use of respondent’s prearrest silence for impeachment purposes. [Emphasis in original.]
Our decision in Collier, however, dealt only with the use of prearrest silence for impeachment; it was not extended to cover substantive use of such evidence.
Nor can we consider defense counsel’s failure to object to this line of questioning tantamount to ineffectiveness of counsel given that the first trial ended with a hung jury. We are convinced that sufficient evidence of record exists apart from the alleged "errors” to support the finding of defendant’s guilt beyond a reasonable doubt.
See anno: Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 ALR2d 1404. See also Harrison v United States, 392 US 219; 88 S Ct 2008; 20 L Ed 2d 1047 (1968).