(dissenting). Because I would hold that defendant’s statements to law enforcement officers are not inadmissible as a part of a plea negotiation, and that a remand is unwarranted because the evidence is admissible on remand, I dissent.
i
Defendant Alex Dunn was convicted by a jury of possession with intent to deliver between 225 and 650 grams of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). He later pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. At issue is the admission of statements he made while in custody. Ypsilanti police detectives James Hall and Jeffrey Lewis met defendant after sheriff’s detective Joe Hall informed them that defendant desired to reveal information in exchange for a "deal” on the pending charges. The officers testified that defendant *428was advised of, and waived, his Miranda1 rights. Defendant asked that the charges be dropped to possession of fifty grams or less, and that he be guaranteed that offense without revealing any specific information. The police refused. The officers informed defendant that they were incapable of brokering any agreement because they did not possess the power to do so and that the consent of the prosecutor was necessary. Furthermore, they refused to convince the prosecutor of the benefits of a plea bargain without knowing what information he had to offer.
Nevertheless, defendant then admitted that he picked up a kilogram of cocaine in Peru or Ecuador, and planned to sell it in Florida. Because he became nervous in Florida, he flew to Georgia and then to Michigan with the cocaine. Defendant admitted that on the night of his arrest he arrived at a friend’s residence, brought the cocaine, injected himself and his friend with cocaine, and overdosed.2 Defendant suggested that he could "set-up” his contact in exchange for leniency, and even called the contact in the detectives’ presence.
Lewis contacted the prosecutor who agreed to enter a plea agreement with defendant if he could tie the cocaine to the contact. Unfortunately for defendant, the contact was unreachable, and no plea agreement was reached.
Before trial, the court conducted a hearing on defendant’s motion to suppress the testimony of the police regarding defendant’s admissions pursuant to MRE 408 and MRE 410. At the hearing, defendant verified that he initially requested that Joe Hall arrange a plea bargain and that he *429contacted Lewis and James Hall. Defendant also admitted that the detectives refused to grant a guarantee of plea bargain, and that he interrupted his Miranda warnings by stating that he would not give any information without a guarantee. He conceded that the officers refused to grant him a guarantee and notified him that they had to receive the prosecutor’s approval. Defendant also verified the remainder of the detective’s testimony. The trial court found the statements to be admissible at trial.
Defendant was convicted as charged and the Court of Appeals affirmed his conviction. The Court found that although defendant’s statements at the jail were improperly admitted under MRE 410, any error was harmless beyond a reasonable doubt. Unpublished opinion per curiam, issued April 14, 1992 (Docket No. 116674).
The majority, however, not only finds that the admission of the testimony was error, but finds its admission harmful and remands the case for a new trial.
ii
Plea bargaining "is an essential component of the administration of justice.” Santobello v New York, 404 US 257, 260; 92 S Ct 495; 30 L Ed 2d 427 (1971); United States v Ykema, 887 F2d 697, 699 (CA 6, 1989), cert den 493 US 1062 (1990). The United States Supreme Court has noted that properly administered, plea bargaining is to be encouraged because
[i]t leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release *430pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. [Santobello, supra at 261.]
To encourage plea agreements,3 MRE 410, at the time of the trial in the instant case, mandated:
Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.[4]
I join the majority’s adoption of the standard enunciated in United States v Robertson, 582 F2d 1356, 1366 (CA 5, 1978), and People v Oliver, 111 Mich App 734, 756; 314 NW2d 740 (1981),5 to determine whether admissions occurred during plea discussions:
The trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, *431whether the accused’s expectation was reasonable given the totality of the objective circumstances.
The majority holds that, for the purposes of MRE 410, the admissions were part of an ongoing plea negotiation. The majority finds that defendant "had a subjective expectation to negotiate a plea at the time of the discussion, and that his expectation was reasonable given the totality of the objective circumstances.” Ante at 415-416.
Yet, the consensus of courts considering the issue is that admissions in circumstances similar to the instant case are admissible evidence. In fact, courts have consistently held that statements made during requests to arrange plea agreements are admissible. See, e.g., United States v Ceballos, 706 F2d 1198, 1203 (CA 11, 1983) (holding that an incriminatory letter written in the hope of obtaining a plea bargain was admissible because "no plea negotiations were underway”); United States v Sebetich, 776 F2d 412, 422 (CA 3, 1985). Similarly, incriminatory statements are admissible if a defendant offers them after being forewarned by law enforcement officials that they lacked authority to complete a plea bargain. See, e.g., Rachlin v United States, 723 F2d 1373, 1376-1377 (CA 8, 1983); Ceballos, supra at 1203; Sebetich, supra at 422.
In Sebetich, for instance, the defendant made incriminating statements during a discussion with an fbi agent. The court admitted the statements, finding that because the defendant understood that the agent did not possess the authority to plea bargain and that no bargain would be struck during the discussion, any expectation of the defendant that he was in the course of plea negotiations was unreasonable. Id. at 421-422. In United States v Keith, 764 F2d 263 (CA 5, 1985), the *432defendant made incriminating admissions to law enforcement agents in the spirit of cooperation and with the hope for leniency. As in the instant case, the agents informed the defendant of his Miranda rights, and told him that they could only "recommend” leniency and that the final plea bargaining authority rested with the United States Attorney. Utilizing Robertson, the court ruled that the statements were admissible because he did not " 'exhibit[ ] an actual subjective expectation to negotiate a plea at the time of the discussion’ and the 'expectation was [not] reasonable, given the totality of objective circumstances.’ ” Id. at 266 (citation omitted).6 In parallel fashion, the court in United States v Posey, 611 F2d 1389 (CA 5, 1980), found the defendant’s statements admissible under Robertson. The defendant’s statements occurred after he told a dea agent that he would like to "cut a deal,” the agent responded that he could only bring his cooperation to the attention of the prosecution, and the agent informed him of his Miranda rights. Id. at 1390-1391. See also United States v Gentry, 525 F Supp 17 (DC Tenn, 1980).
Hence, in the instant case, the majority’s finding that defendant was engaged in plea negotiations when he admitted his criminal activity is simply untenable. The officers informed him of his Miranda rights and explained that they were incapable of guaranteeing a plea agreement because any agreement would have to be negotiated and approved by the prosecuting attorney. Not unlike Sebetich, Posey, and Keith, defendant’s purported belief that he had entered bona fide plea negotiations or that the statements made to law enforcement officials would not be used against him was *433simply unreasonable. When defendant agreed to provide the information under these circumstances, he bore the risk that a plea agreement would not be reached. In fact, his gamble was nearly successful in that a tentative plea agreement was reached. The people should not be punished because defendant’s risk-taking failed.
in
Furthermore, a remand of this case is an empty gesture because recent amendments of MRE 410 permit the evidence at issue to be presented at trial. MRE 410 now bars statements made during plea negotiations only if the statements are made to attorneys. In the instant case, the officers in question were obviously not attorneys, and they disavowed any pretense of possessing the authority of a government attorney. The evidence at issue, therefore, is admissible on remand. United States v Bernal, 719 F2d 1475, 1478 (CA 9, 1983); Rachlin, supra at 1376.7 Hence, the granting of a new trial is simply "an empty gesture.” People v Sanford, 402 Mich 460, 498; 265 NW2d 1 (1978) (Ryan, J., concurring).
IV
Finally, I agree with the majority that the trial *434court’s requirement that defendant wear leg shackles was harmless because the record fails to disclose that any member of the jury actually saw the shackles. Thus, the remainder of the majority’s discussion regarding the propriety of requiring shackles is unnecessary obiter dicta, and more appropriately addressed pursuant to the Court’s administrative power.
Thus, I respectfully dissent.
Boyle and Griffin, JJ., concurred with Riley, J.Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Defendant was subsequently arrested and charged with the crime in question.
The purpose behind the exclusion of MRE 410 is that plea bargaining is to be encouraged to help achieve the effective administration of criminal justice and admissibility would discourage such bargaining. [People v Oliver, 111 Mich App 734, 756; 314 NW2d 740 (1981).]
Currently, MRE 410 prohibits the introduction of such evidence only if the statements are made to government attorneys.
See also People v Conte, 421 Mich 704, 744; 365 NW2d 648 (1984) (opinion of Williams, C.J.); People v Manges, 134 Mich App 49, 59-60; 350 NW2d 829 (1984).
The court also ruled that FRE 410 was inapplicable because it only applied to government attorneys, not law enforcement officers. Id. at 265.
Nor is the admission of such testimony unconstitutional under the United States or Michigan Constitution’s prohibition of ex post facto laws. See, e.g., Beazell v Ohio, 269 US 167, 170-171; 46 S Ct 68; 70 L Ed 216 (1925) (noting that the admission of testimony by a particular witness at trial does not violate the prohibition against ex post facto laws even though the witness was precluded from testifying at the time of the crime); People v Potts, 436 Mich 295, 303; 461 NW2d 647 (1990) ("There is no violation of the ex post facto provision where the enactment at issue alters modes of procedure rather than substantial personal rights”); Murphy v Sowders, 801 F2d 205 (CA 6, 1986) (holding that admission of testimony at trial that was inadmissible at the time of the indictment and crime did not constitute an ex post facto law).