(dissenting). Sutton was convicted of second-degree murder1 and possession of a firearm during the commission of a felony.2 The Court of Appeals reversed Sutton’s convictions primarily on the ground that the impeachment use of his failure to come forward and inform the police that he had shot someone, but that it was an accident, and *601of his postarrest, post-Miranda* 3 silence, violated the rule stated in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973).
This case was consolidated on appeal with People v Cetlinski, 435 Mich 742; 460 NW2d 534 (1990), and People v McReavy, 436 Mich 197; 462 NW2d 1 (1990). In Cetlinski, the Court held that it was bedtime for Bobo which henceforth is to be construed coextensively with the minimal requirements of the United States Constitution.4 The Court also held that the impeachment use of a defendant’s "statement, including omissions,” during prearrest conversations with law enforcement personnel did not violate Cetlinski’s rights under the United States or Michigan Constitution.5 In McReavy, the Court held that the substantive use of a defendant’s "demeanor and statements” during custodial interrogation did not violate Mc-Reavy’s rights under the United States or Michigan Constitution.6
This case concerns the correct judicial response *602where the prosecutor, by asking a question on cross-examination of the defendant, assures that inadmissible matter will be presented to the jury. The prosecutor, knowing that a police officer would testify that Sutton had not told the police that the shooting was an accident,7 asked Sutton whether he had so informed the police. Either:
—Sutton would respond that he had not so informed the police; such a response would convey to the jury that Sutton did not, after he had received the Miranda warnings,8 tell the police that the shooting was an accident, which would have been violative of the United States Supreme Court’s decision in Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976); such a response might also convey to the jury that Sutton did not, before he was arrested and given the Miranda warnings,9 tell the police that the shooting was an accident, which would have been violative of the interpretation of Bobo that prevailed when Sutton was tried; or
—Sutton’s lawyer would object to the question, and the objection would be sustained, with the result that the jury would assume that Sutton did not tell the police that the shooting was an accident; this would have the same effect as a practical matter as if Sutton’s lawyer had not objected and Sutton had testified that he did not so inform the police; or_
*603—Sutton would respond that he did inform the police that the shooting was an accident, and the prosecutor would call the police officer who would testify that Sutton did not so inform the police. That is what occurred in this case.
Thus, by asking the question, the prosecutor assured that—regardless of what Sutton or his lawyer did or did not say—the jury would learn that the prosecutor claimed that Sutton had not informed the police that the shooting was an accident. This case does not involve Cetlinski, McReavy, or Bobo. It involves Ignofo.10 We agree with the Court of Appeals that Sutton did not receive a fair trial, and affirm.
i
Sutton’s convictions stem from a shooting at a party during the early morning hours of February 13, 1982. During the people’s case in chief, the prosecutor presented evidence that immediately before the shooting there was a fight between the decedent and Sutton’s brother and that as other persons were attempting to break up the fight a shot was fired, hitting the decedent. One witness testified that he saw Sutton pull a gun and shoot the decedent.
Sutton claimed the shooting was accidental. On direct examination, he testified that he had taken the gun in hand in an attempt to break up the fight between his brother and the decedent. He said that someone knocked him into a table causing him to drop the gun and that the gun discharged when it hit the floor. He said that on the night of the incident he did not know that anyone *604had been shot and that when he left the party the police had not arrived.
On cross-examination, the prosecutor sought to impeach Sutton’s testimony by asking him when he first told the police the shooting was an accident. Sutton responded that while "in police custody” in February, 1982, he informed Sergeant Bonner, the arresting officer, that the shooting was an accident.11 Sutton’s lawyer did not object.
After the defense rested, the prosecutor recalled Bonner who testified that Sutton did not at any time in 1982 tell him the shooting was an accident.12 Sutton’s lawyer did not object. On cross-examination, Sutton’s lawyer implied that Bonner was lying and that the police had kept the lawyer from Sutton when Sutton was being processed at the police station. Once again, the prosecutor *605called Bonner who testified that he gave Sutton the Miranda warnings, and that Sutton said that on the advice of his lawyer he did not want to make a statement.13 Again, Sutton’s lawyer did not object.
In closing argument, the prosecutor, without objection, referred to both Sutton’s failure to relate his exculpatory version to the police when he was arrested and Sutton’s exercise of the right to remain silent.14
The Court of Appeals reversed Sutton’s convictions on the grounds that the prosecutor violated Bobo by asking Sutton when he told the police the shooting was an accident, and that Sutton had been denied a fair trial in light of the prosecutor’s cross-examination, Bonner’s testimony that when advised of his Miranda rights Sutton told him he did not wish to make a statement, and the prosecutor’s reference in closing argument to Bonner’s rebuttal testimony.
ii
Analysis should begin with and focus on the prosecutor’s initial inquiry—during cross-examination of Sutton—whether Sutton had informed the police that the shooting was an accident.15 It is *606that inquiry—not Sutton’s testimony on direct examination16—that set in motion the chain of events that culminated in the repeated introduction of Sutton’s failure to inform the police that the shooting was an accident and of his exercise of the right to remain silent.
A
When the prosecutor asked Sutton whether he had informed the police that the shooting was an accident, he was attempting to accomplish one of two purposes: 1) to elicit a prior statement that was inconsistent with Sutton’s testimony on direct examination, or 2) to elicit Sutton’s "silence” (i.e., his failure to tell the police that the shooting was an accident). It is manifest from the record in this case that the prosecutor was attempting to bring out Sutton’s "silence.”
Sutton responded to the prosecutor’s inquiry on cross-examination that he had made a statement. Instead of searching for inconsistencies between Sutton’s "statement” and his testimony on direct examination, the prosecutor "asked no more questions regarding this subject”17 after Sutton testified that while "in police custody” in February, 1982, he told Bonner that the shooting was an accident. If the prosecutor’s intention had been to impeach Sutton’s direct testimony with a prior inconsistent *607statement, he would have inquired further about the statement Sutton allegedly made to Bonner.18
B
The prosecutor sought to bring out that Sutton had not stated that the shooting was an accident. The question remains whether it was permissible to do so.
The prosecution’s evidence indicated that Sutton remained completely silent after he was arrested and given the Miranda warnings. The Due Process Clause as elucidated in Doyle, supra, barred the impeachment of Sutton’s direct testimony with his postarrest, post-Miranda failure to inform the police that the shooting was an accident.19
Parenthetically, impeachment of Sutton’s direct testimony with his prearrest or postarrest, preMiranda "silence” would not have been constitutionally impermissible. Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980); Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982). The impeachment use of such evidence would, however, have been impermissible under the interpretation of Bobo that prevailed when Sutton was tried.
*6081
The record in the instant case indicates that the prosecutor failed to confine his initial inquiry on cross-examination to the constitutionally permissible pre-Miranda time frame. The prosecutor narrowed his inquiry no further than the month of February, 1982, which included both a preMiranda period (February 13-14)20 and a postMiranda period (February 14-28).21 Where prosecutorial questioning has been found to refer to both pre- and post-Miranda silence, courts have found Doyle error.22
In State v Lofquest, 227 Neb 567, 570; 418 NW2d 595 (1988), the Supreme Court of Nebraska held that prosecutorial questioning and comment which "could be construed as referring to [Lofquest’s] silence from the first police contact through the moment before Lofquest told his story at trial” violated the Due Process Clause where the record established that Lofquest had received the Miranda warnings at some point before his trial.23 The court reasoned:
*609In a case such as this where a pr e-Miranda and post-Miranda timeframe may exist, difficulties arise when general references are made to a defendant’s silence, which a reasonable juror could construe as including the post-Miranda silence period. We cannot allow prosecutors to sidestep the Doyle protections by skirting the edge of the law with vague and imprecise references to a defendant’s silence. [Id]
We share those concerns. The United States Constitution provides that a defendant has the right not to be impeached with his post-Miranda silence. Prosecutors who intend to introduce evidence of a defendant’s pretrial silence are obliged to clearly limit their questioning—with or without objection24—to the pr e-Miranda period.25_
*6102
Pursuant to the evidentiary framework adopted in People v Collier, 426 Mich 23; 393 NW2d 346 (1986),26 Sutton’s failure to inform the police that the shooting was an accident was inadmissible on the additional basis that such evidence did not have probative value to impeach Sutton’s direct testimony that the shooting was an accident.
This is a case in which the defendant’s "exculpatory” version of the events was incriminatory. Sutton’s testimony indicated that at the time of the shooting he was carrying a concealed weapon without a permit. Informing the police of his "exculpatory” version would thus have meant confessing to the commission of a firearms violation27 and to whatever offense might attach to an accidental killing.28 Under the circumstances, it would not have been natural for Sutton to have come forward.29 As a result, his failure to do so did not *611have probative value to impeach his testimony that the shooting was an accident, and such evidence was inadmissible for that purpose.
3
When the prosecutor asked Sutton whether he had informed the police in February, 1982, that the shooting was an accident, his manifest intention was to impeach Sutton’s testimony that the shooting was an accident by showing that Sutton had not previously asserted this exculpatory version of the shooting.30 However, Sutton’s "silence,” as defined by the prosecutor’s inquiry, was not at the time admissible for that purpose under either the United States Constitution31 or this state’s evidence law.32
Sutton was thus asked a question to which either response would have led to the introduction of inadmissible evidence. He could have responded that he had not informed the police that the shooting was an accident, or—as occurred—Bonner could so testify to rebut Sutton’s response that he had related the exculpatory version to the police.
c
Sutton might have prevented the introduction of testimony concerning his silence if his lawyer had objected to the prosecutor’s initial question on cross-examination. It could thus be said that Sutton "waived” his right not to be impeached with post-Miranda silence when his lawyer failed to object to the prosecutor’s question.
Under the circumstances of this case, we decline *612to so construe the failure of Sutton’s lawyer to object. There was a significant probability that an objection would have conveyed to the jury that Sutton had not told the police that the shooting was an accident. The failure to take an action that would itself have undermined the right not to be impeached with post -Miranda silence cannot fairly be deemed a waiver of the right not to be impeached with post-Miranda silence.
If Sutton’s lawyer had objected and the objection had been sustained, the jury probably would have speculated whether Sutton had informed the police that the shooting was an accident. If the jury had so speculated, it likely would have assumed that Sutton had not informed the police that the shooting was an accident.
There were in essence only two answers to the prosecutor’s question. Either Sutton told the police that the shooting was an accident, or he did not. The jury likely would have assumed that if Sutton had told the police that the shooting was an accident, he would have so testified on direct examination33 or he would have sought to so testify on cross-examination.
If Sutton’s lawyer had objected and the objection had been sustained, it is thus likely the jury would have disregarded one of the two possible answers to the prosecutor’s question. The other answer— that Sutton had not informed the police that the shooting was an accident—is, of course, something the prosecutor could not permissibly have proved during cross-examination of Sutton.34 In the in*613stant case, the harm was in the asking.
Analogous is People v Ignofo, 315 Mich 626; 24 NW2d 514 (1946). There, the prosecutor cross-examined Ignofo about a conversation with his ex-wife in which they allegedly discussed Ignofo’s involvement in a murder. Ignofo’s lawyer did not object. Because of the statutory privilege pertaining to confidential marital communications,35 Ignofo’s ex-wife could not have testified about any statements she had made. In answering the prosecutor’s questions, Ignofo did not disclose any privileged marital communications, but instead denied that his former wife had made any statements regarding his involvement in the murder.36
Relying on People v Salisbury, 218 Mich 529; 188 NW 340 (1922),37 the Court found prejudicial error in the cross-examination and said that "[t]he *614failure of counsel to object to this line of questioning did not nullify the error.”38
As in Ignofo, the prosecutor in the instant case could not have introduced the challenged evidence in the case in chief.39 In both Ignofo and the instant case, the prosecutor' sought on cross-examination of the defendant to put before the jury otherwise inadmissible evidence. We see no reason to distinguish between creating an impression through questioning (Ignofo), and creating an impression by causing an objection or questioning to establish a predicate for the subsequent introduction of rebuttal testimony (Sutton).
D
On cross-examination and recross-examination of Bonner, Sutton’s lawyer implied that Bonner was lying, and in closing argument the lawyer again stated that Sutton had informed the police that the shooting was an accident. It could thus be said that Sutton waived his right not to be impeached with post-Miranda silence on the theory that Sutton’s lawyer placed in issue his postarrest conduct when he adopted the position that Sutton had informed Bonner that the shooting was an accident.
Under the circumstances of this case, the position taken by Sutton’s lawyer cannot fairly be deemed a waiver of Sutton’s right not to be impeached with post-Miranda silence. The assertions of Sutton’s lawyer that Bonner was lying came after Bonner asserted that Sutton was lying. A defense lawyer is not expected to allow testimony that directly contradicts the testimony of his client *615to go unchallenged. Enforcement of a defendant’s right not to be impeached with post -Miranda silence cannot properly be conditioned on surrender at trial.
It may seem that our ruling allows a defendant to have his cake and eat it too. In the instant case, however, it was the prosecutor, and not the defendant, who baked the cake.40
hi
The reference to Sutton’s silence was not an isolated occurrence. Not only did Bonner testify regarding Sutton’s failure to disclose the exculpatory version, he also testified regarding Sutton’s post-Miranda exercise of the right to remain silent. The prosecutor referred to this testimony in closing argument.
The prosecutor asked an impermissible question during his cross-examination of Sutton. The result was a side show, a minitrial concerning a subject that should not have been broached and should not have been permitted to go further.
We agree with the Court of Appeals that Sutton did not receive a fair trial. Sutton’s trial was a close credibility contest in which Sutton denied shooting the decedent, and one witness alone, among many present at the incident, testified that he saw Sutton shoot the decedent.
IV
The lead opinion places emphasis on several *616decisions sustaining the use of a defendant’s post-Miranda silence to impeach trial testimony regarding his postarrest conduct. This exception to the general rule against impeachment with post-Miranda silence was recognized by the United States Supreme Court in Doyle.41 If Sutton had testified on direct examination that he had informed the police that the shooting was an accident, this exception would indeed be applicable to the prosecutor’s initial inquiry on cross-examination of Sutton. On the facts of this case, however, the authorities cited by the lead opinion are inapplicable to the prosecutor’s initial inquiry on cross-examination.42
In United States v Mavrick, 601 F2d 921 (CA 7, 1979), the defendant testified on direct examination that when he was arrested he was not given an opportunity to oifer his exculpatory version of events to the police. In light of the impression created by Mavrick’s testimony, the court concluded that it was permissible for the prosecutor to ask Mavrick whether he had been given an opportunity to explain his conduct to the fbi agents who took him into custody shortly after he was arrested.43 In the instant case, Sutton’s testimony on *617direct examination did not create the impression that when he was arrested he had been denied an opportunity to tell the police that the shooting was an accident.44
In United States v Fairchild, 505 F2d 1378 (CA 5, 1975), the prosecutor elicited testimony from a police officer that after receiving the Miranda warnings, the defendant had refused to make a statement. However, unlike Sutton, the defendant’s lawyer in Fairchild created the impression through cross-examination of a different government witness that his client had cooperated fully with the authorities.45 The United States Court of Appeals for the Fifth Circuit held that the prosecutor’s inquiry was permissible to rebut the impression that Fairchild had cooperated with the authorities. In the instant case, Sutton’s lawyer did not create a similar impression through his *618cross-examination of Bonner during the prosecution’s case in chief.46
In United States v Conlin, 551 F2d 534, 537 (CA 2, 1977), the defendant’s lawyer "propounded the theory that Conlin had spoken throughout the incident and had maintained from the outset that he had [an innocent explanation for his apparently unlawful conduct].” This theory was advanced during cross-examination of a government witness and through Conlin’s own testimony. In the instant case, neither Sutton on direct examination nor his lawyer on cross-examination of Bonner during the prosecution’s case in chief advanced the theory that Sutton had continuously asserted his innocence, at the time of the shooting or thereafter.
There is no basis on which it can be said that Sutton’s testimony on direct examination created an inference—"arguable” or otherwise—that legitimately could be rebutted by testimony about his post-Miranda silence. There is no basis in fact for the lead opinion’s suggestion that the prosecutor’s initial inquiry on cross-examination might have been permissible to test "the credibility of defendant’s testimony on direct examination implying that he would have made an explanation consis*619tent with his trial testimony but for the police conduct in 'grabbing him’ . . . .”47
It is difficult to imagine a more routine description of an arrest than Sutton’s testimony that the police grabbed him and informed him that he was being charged with first-degree murder. A defendant who testifies that he was arrested and informed of the charge does not thereby waive his constitutional right elucidated in Doyle not to be impeached with post-Miranda silence.48
Cavanagh and Archer, JJ., concurred with Levin, J._MCL 750.317; MSA 28.549.
MCL 750.227b; MSA 28.424(2).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
We therefore construe Bobo as being coextensive with the Fifth Amendment of the United States Constitution and the due process analysis of Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976). [Cetlinski, supra, pp 759-760.]
We hold that the use for impeachment purposes of a defendant’s prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant’s constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. [Cetlinski, supra, pp 746-747.]
The Court added that "[t]he use of a defendant’s prearrest, preMiranda 'statements’ for impeachment purposes is one of relevancy, an evidentiary matter.” Id., p 747.
The admission for substantive purposes of evidence of the defendant’s demeanor and statements made during custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self-incrimination and prior to invoking the right to remain silent is neither error of constitu*602tional dimension nor a violation of the Michigan Rules of Evidence. [McReavy, supra, p 203.]
The Court added that "[w]hen constitutional obligations are fulfilled, use of a party opponent’s statements and conduct are to be evaluated pursuant to MRE 801.” Id., p 222.
See ante, pp 589-590 and n 15 (quoted in n 18).
The prosecutor’s inquiry on cross-examination referred to both the pre- and post-Miranda time frame. See part ikbxi).
Cf. ante, p 581, n 3.
People v Ignofo, 315 Mich 626; 24 NW2d 514 (1946). See ns 35-39 and the accompanying text.
Q. When did you tell the police it was an accident?
A. When did I tell the police it was an accident?
Q. Yes.
A. I can’t remember exactly when.
Q. You did tell the police?
A. Yes.
Q. Do you have any idea when you told the police?
A. No. I can’t remember.
Q. Do you have any idea what police you told?
A. Sergeant Bonner.
Q. Sergeant Bonner?
A. Yes.
Q. What year was that, sir?
A. ’82.
Q. ’82. Was that the same month of the shooting at the hall?
A. I think so, yes.
Q. Well, how did that occur? Did you call the police and tell them what happened?
A. I was in police custody.
Q. Sergeant Bonner, one question. At any time in 1982, did this defendant, ever, Mr. Sutton, ever, tell you that the shooting at the Fandango Hall was an accident?
A. No. He did not.
Q. In fact, the defendant—did the defendant make any statement to you when his attorney was there?
A. I advised him of his Constitutional rights, on a certificate of notification form. He advised me that after conferring with his attorney, he wished to make no statement.
He [Sergeant Bonner] also told us back in 1982, when the defendant was originally arrested, that the defendant never indicated to him that the shooting was an accident, but, in fact, indicated to him that he had nothing to say, no statement.
The lead opinion, in contrast, places primary emphasis on what occurred after the prosecutor asked Sutton whether he had informed the police that the shooting was an accident.
We disagree with the suggestion that Sutton’s testimony on direct examination or his earlier testimony on cross-examination "opened the door” for the prosecutor’s inquiry on cross-examination. See ante, pp 580-581, 584-585, and 591, n 16. This aspect of the dissent is discussed more fully in part IV.
If we agreed with the lead opinion concerning whether Sutton had "opened the door” for the prosecutor’s inquiry on cross-examination, we might find ourselves in substantial agreement with the lead opinion’s analysis and result.
Ante, p 585.
The lead opinion appears to acknowledge that it was the prosecutor’s intention to elicit Sutton’s silence. See ante, p 590, n 15 ("The fact that the prosecutor did not go further is perhaps explained by the fact that he knew Sutton had not made a statement”).
In Doyle, the United States Supreme Court held that the Due Process Clause generally bars the impeachment use of a defendant’s silence occurring after receipt of Miranda warnings.
The Court recognized an exception to the general rule against impeachment with post-Miranda silence where such evidence is used to contradict testimony about a defendant’s postarrest behavior. Id., p 619, n 11. This exception is not applicable in respect to the prosecutor’s cross-examination because Sutton had not yet testified that he informed the police that the shooting was an accident. See part iv.
We are not referring to the applicability of the Doyle exception to Bonner’s rebuttal testimony. Cf. ante, pp 594-595, n 19.
The shooting occurred during the early morning hours of February 13, 1982. Sutton was arrested on February 14. Bonner testified that upon arrest Sutton was given the Miranda warnings.
The record indicates that Sutton was in police custody from the time of his arrest until he posted bond, which apparently was on March 24,1982.
See United States ex rel Allen v Franzen, 659 F2d 745, 748 (CA 7, 1981), State v Wells, 229 Neb 89, 100; 425 NW2d 338 (1988), and State v Lofquest, 227 Neb 567, 570; 418 NW2d 595 (1988).
The lead opinion asserts that "Lofquest and Franzen are distinguishable” because "[u]nlike the instant case, in Lofquest and Fran-zen the defendant did not testify at trial that he gave a statement to the police that was consistent with his exculpatory story given at trial.” Ante, p 596, n 22 (emphasis in original).
Lofquest and Franzen are cited only for the proposition that prosecutorial questioning that refers to both pre- and post-Miranda silence is impermissible. The validity of that proposition is not affected by the manner in which the defendant subsequently testifies.
The lead opinion says that "the prosecutor’s questions and state*609ments [in Lofquest] were directed specifically to the postarrest time period.” Ante, pp 594-595, n 19. The lead opinion fails to acknowledge that the postarrest and post-Miranda periods are not necessarily the same. In Lofquest, there was a dispute whether the defendant had received Miranda warnings when he was arrested or during earlier contacts with the police, but it was undisputed that he had received the warnings when he was arraigned (one day after his first police contact and the same day as his arrest). See Lofquest, p 568. Even if the prosecutor’s inquiry and comments in Lofquest had been "directed specifically to the postarrest time period,” they still would not have adequately distinguished between pre- and post-Miranda silence.
The lead opinion says that "[a]n objection might have resulted in a direction from the trial court that the prosecutor’s question was to be limited to the prearrest pr e-Miranda warning period.” Ante, p 591, n 16. With or without an exhortation from the trial court, a prosecutor is obliged—and certainly able—to limit his questioning to the constitutionally permissible time frame.
The prosecutor’s inquiry in this case clearly referred to a time frame that included both a pre- and post-Miranda period. See United States ex rel Allen, n 22 supra, p 748 ("the fact that the questions may have permissibly referred in part to the pre-arrest silence does not alter the conclusion that the references to post-arrest silence were unconstitutional”).
There is thus no need to adopt a rule for the construction of prosecutorial questioning or comment that does not clearly refer to both pre- and post-Miranda silence. Cf. ante, p 594, n 19 ("Some courts hold that where postarrest post-Miranda silence is arguably in question, the burden is on the prosecutor to establish that there is a permissible line of inquiry”).
In Collier, the Court held that evidence of a defendant’s failure to come forward and inform the police of the exculpatory version of events to which he testifies at trial is admissible for impeachment purposes where it would have been natural for the defendant not to have remained silent.
Pursuant to MCL 750.227; MSA 28.424, carrying a concealed firearm without a permit is a felony punishable by a term of imprisonment of not more than five years or by a fine of not more than $2,500.
See, e.g., MCL 752.861; MSA 28.436(21), which provides that the reckless or negligent handling of a firearm causing death or injury is a misdemeanor punishable by a term of imprisonment in the state prison for not more than two years, a fine of not more than $2,000, or a term of imprisonment in the county jail for not more than one year.
The jury in Sutton’s trial was instructed on this offense.
See Commonwealth v Nickerson, 386 Mass 54, 60-61; 434 NE2d 992 (1982), State v Merola, 214 NJ Super 108, 116-121; 518 A2d 518 (1986), Silvernail v State, 777 P2d 1169, 1178 (Alas App, 1989), and People v McKinney, 193 Ill App 3d 1012, —; 550 NE2d 604, 608 (1990), lv den 132 Ill 2d 551 (1990).
In McKinney, 550 NE2d 608, the Appellate Court of Illinois concluded that "[t]o adopt a rule that it is likely that everyone who acts accidentally or negligently will immediately acknowledge that action or negligence fails to meet the test of reason.”
See part ii(a).
See part ikbxd.
See part ikbX2).
The jury would not have known that Sutton could not have testified on direct examination that he had so informed the police. Sutton’s alleged statement would have been inadmissible hearsay if offered on direct examination.
Thus, Sutton’s lawyer was also faced with a "conundrum.” Cf. ante, p 589 (discussing the "conundrum” faced by the prosecutor *613when Sutton testified on cross-examination that he told Bonner that the shooting was an accident). It was the prosecutor, however, who created both conundrums by asking Sutton an impermissible question on cross-examination.
1929 CL 14221; MSA 27.916, as amended by 1939 PA 82. Currently, MCL 600.2162; MSA 27A.2162.
Thus, in both Ignofo and the instant case, the defendant’s testimony on cross-examination did not introduce inadmissible evidence. In Ignofo it was a negative answer which did not reveal inadmissible evidence whereas in Sutton it was an affirmative answer.
In Salisbury, the prosecutor cross-examined the defendant concerning admissions he allegedly made to his wife. There was no objection. Salisbury denied having made the admissions. The Court found error requiring reversal. The Court made these pertinent observations:
The effect of permitting such a course to be pursued cannot but be apparent to any person familiar with the trials of criminal cases. Propounding the question, even if answered in the negative, cannot but leave an impression on the minds of at least some of the jury that the wife, if permitted, would testify that the statement was made to her. The statute prohibits such disclosures on the part of the wife and in our opinion must be held to equally prohibit questioning the husband concerning them. [Id., p 536 (quoted in Ignofo, pp 639-640).]
Ignofo, p 641.
It seems beyond dispute that a defendant’s post-Miranda silence may not be used as substantive evidence of guilt.
See, generally, United States v Elkins, 774 F2d 530, 539, n 8 (CA 1, 1985) (defense counsel referred to the defendants’ post-Miranda silence during cross-examination of a government witness and in his closing argument; the court said that "[t]he 'invited error’ defense is not open to the government, because the prosecutor made the initial reference to the defendants’ silence”). See also United States v Meneses-Davila, 580 F2d 888, 895-896 (CA 5, 1978).
See Doyle, supra, p 619, n 11. See also People v Graham, 386 Mich 452; 192 NW2d 255 (1971).
Again, we are not referring to the applicability of the Doyle exception to Bonner’s rebuttal testimony. Cf. ante, p 594, n 19.
The prosecutor’s cross-examination "was not clearly directed at eliciting an admission of the defendant’s post-arrest silence,” but instead was directed to "whether the defendant was given an opportunity to explain at any time after his arrest.” Id., p 933.
Unlike Mavrick, in the instant case, the prosecutor’s examination on surrebuttal was manifestly designed to elicit testimony that Sutton had remained silent when he was arrested. See n 13. Thus, even if Sutton had "opened the door” to the same extent as Mavrick, the opinion of the United States Court of Appeals for the Seventh Circuit would not necessarily support the lead opinion’s position.
Also, in Mavrick, "[t]he prosecution did not pursue the matter any further and it did not argue it to the jury during closing argument.” *617Id., p 932. In contrast, the prosecutor in the instant case twice elicited testimony from Bonner regarding Sutton’s silence and then mentioned Sutton’s silence in closing argument.
In Mavrick, the basis for the inference that was permitted to be countered with evidence of the defendant’s postarrest "silence” was the following direct testimony of the defendant:
"Q. Did you attempt at the time of your arrest to explain your conduct to those officers who were taking you into custody?
"A. Yes, we did.
"Q. Did they give you an opportunity at that time to speak?
"A. No, they told us to shut up, and they don’t want to hear it.” [Id., p 932.]
The trial transcript—before the prosecutor’s initial inquiry on cross-examination of Sutton—contains nothing remotely similar to the defendant’s testimony in Mavrick. Summit v Blackburn, 795 F2d 1237 (CA 5,1986), is distinguishable for the same reason.
Defense counsel created this impression when he asked the witness, " 'During the period of time that this investigation has been going on, to your knowledge has Mr. Fairchild cooperated fully with the fbi and U.S. Attorney’s office in responding with anything that you all wanted?’ ” Id., p 1383.
United States v Dixon, 593 F2d 626 (CA 5, 1979), is not on point for a similar reason. There, Dixon’s direct testimony, that on four or five occasions he had spoken with an fbi agent, "arguably created the inference that he had been cooperating with the police.” Id., p 630. The fbi agent’s testimony that Dixon had never related to him the exculpatory version of events he was offering at trial was permissible to rebut that inference.
In the instant case, Sutton did not testify on direct examination that he had spoken with the police. There is no basis for finding an "arguable inference” of cooperation which could then be rebutted with Sutton’s postarrest silence.
It also should be noted that Dixon did not hold that the rebuttal testimony was not a Doyle violation. Rather, the court assumed a Doyle violation and held that under the circumstances any error was harmless. Id., pp 628-630.
Ante, pp 580-581. See also ante, p 584.
With respect to the testimony elicited by Sutton’s lawyer that Sutton voluntarily surrendered to the police in February, 1982, and that he voluntarily returned to Michigan in August, 1983, it is clear that this testimony was designed to rebut the adverse inference arising from Bonner’s testimony on direct examination in the prosecution’s case in chief that Sutton had not appeared for his June, 1982, trial and that he was subsequently arrested in Ohio.