(concurring in part and dissenting in part).
i
We are asked to decide in this case whether one who has been convicted of a crime and is remanded to undergo a psychiatric examination as part of the presentence investigation must be given Miranda1 warnings under the rule announced in Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981). While not included in this Court’s order granting leave to appeal, we are also asked to decide whether defendant possessed a Sixth Amendment right to the assistance of counsel during the presentence psychiatric examination. The majority concludes that while the Fifth Amendment privilege against self-incrimination attaches at a psychiatric examination when ordered as part of a presentence investigation, the defendant’s rights were adequately protected in this case, notwithstanding the absence of Miranda warnings.
I agree with the majority that no Fifth Amendment violation is present in this instance, and *300therefore concur in that result.2 Assuming arguendo that the Sixth Amendment advance notice to counsel requirement applies to presentence post-conviction psychiatric interviews, I . agree that the record does not support the claimed violation of that rule.
A
The United States Supreme Court has determined that the applicability of the Fifth Amendment right against self-incrimination turns on two subsidiary questions — the nature of the statement or admission involved, and the exposure to defendant that admission into evidence of the statement or admission would invite. In re Gault, 387 US 1, 49; 87 S Ct 1428; 18 L Ed 2d 527 (1967). Foregoing this analysis, however, the majority proceeds on the bare assumption that the defendant possessed a Fifth Amendment right against self-incrimination at a psychiatric examination used for sentencing purposes, while openly acknowledging that the factors prompting the Smith Court to find the Fifth Amendment applicable in that case are not present here.
While I agree that a convicted defendant retains a Fifth Amendment privilege not to incriminate himself during a presentence interview with regard to activity unrelated to the crime for which he has been convicted,3 I cannot agree with the *301majority’s assumption that the Fifth Amendment applies to the use of a defendant’s interview with a psychiatrist bearing only on the potential range of a legislatively determined sentence. Unlike Smith, this is neither a situation in which the question of the penalty to be imposed was to be resolved in an evidentiary proceeding, nor a situation in which the defendant was compelled to submit to the psychiatric evaluation. Nor is this a situation like that in Smith, where the defendant was unaware that the psychiatrist was obtaining evidence that would be used against him for another purpose and in a different context than the limited function of the psychiatric examination. Indeed, as the Court noted in Smith, "if the application of Dr. Grigson’s findings had been confined to serving that function, no Fifth Amendment issue would have arisen,” Estelle v Smith, supra, p 465.
In my view, Smith does not compel the conclusion that the Fifth Amendment applies to statements made by a defendant in this context. While in an abstract sense it is correct to state that the Fifth Amendment is always applicable to prohibit "use by the prosecution in its case in chief only of *302compelled testimony,” Oregon v Elstad, 470 US 298, 306; 105 S Ct 1285; 84 L Ed 2d 222 (1985), the Court’s approach in Smith illustrates that the relevant inquiry requires an examination of the government’s obligation in the circumstances presented. Thus, the Court in Smith answered the question "whether the Fifth Amendment privilege is applicable in the circumstances of this case,” id., p 461, by looking to the use made of the statements and concluding that if the government uses compulsory examination to gather evidence against a defendant, the government is obligated to advise the defendant that he has "a constitutional right not to answer the question put to him.” Id., p 467.
Absent further guidance, the conclusion I draw from Smith is that while the protection of the Fifth Amendment privilege does not disappear merely because the respondent’s statements were uttered in the context of a presentence psychiatric examination, id., p 465, neither does the fact that defendant made statements during the psychological examination automatically include them within the reach of the Fifth Amendment. Whether the Fifth Amendment applies depends upon the nature of the statement or admission and the exposure which it invites. Thus, if the issue here were whether a psychologist who obtained information at a presentence examination that the defendant had admitted the commission of another crime could testify on the issue of guilt at the defendant’s trial for that crime, Smith might well compel the answer that the Fifth Amendment is applicable. In my judgment, however, Smith does not compel the conclusion that the Fifth Amendment applies to every postconviction interview.
*303B
In concluding that the Fifth Amendment applied to the facts presented in Smith, the Supreme Court looked to several distinct factors. First, the Court assessed the gravity of the decision to be made at the penalty phase of the prosecution and concluded that the Fifth Amendment was applicable at a capital-sentencing hearing.
Next, rejecting the state’s claim that defendant’s communications to Dr. Grigson were nontestimonial, the Smith Court considered the fact that the state, in seeking the death penalty, used as evidence detailed descriptions of statements made by defendant to the state’s psychiatrist during the course of a pretrial competency examination. These statements were offered to prove to the jury the defendant’s future dangerousness during the penalty phase of the proceeding. The Court viewed as dispositive the fact that "Dr. Grigson drew his conclusions largely from respondent’s account of the crime during their interview, and he placed particular emphasis on what he considered to be respondent’s lack of remorse,” 451 US 464. Because the prognosis as to defendant’s future dangerousness rested on the defendant’s own recitation of the details of the crime, and because these statements were used as direct evidence against the defendant during the penalty phase of the proceeding, the Fifth Amendment was implicated.
Finally, the Court acknowledged "the[] distinct circumstances” of the case, 451 US 466, noting that the trial judge, sua sponte, had ordered the psychiatric examination.
By contrast in the instant case, as the majority properly notes, the facts found by the Smith Court to mandate the observance of Fifth Amendment rights are simply inapposite to those found here.
First, we do not operate under a bifurcated trial system in which the state must prove certain facts beyond a reasonable doubt to secure a desired *304sentence in a contested adversarial context.4 Thus, it cannot be said that information given by the defendant provided evidence against him that reduced the government’s burden to shoulder the load.
Second, the purpose of the instant examination was limited to assistance in the sentencing decision. By contrast, as the Court observed in Smith, Dr. Grigson’s examination had not been restricted to serving the neutral purpose of determining defendant’s competency to stand trial, in which case, "no Fifth Amendment issue would have arisen.” Id., p 465. However, "[w]hen Dr. Grigson went beyond simply reporting to the court on the issue of competency and testified for the prosecution at the penalty phase on the critical issue of respondent’s future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting.” Id., p 467. In this case, Mr. Crenshaw’s examination contained no reference to the details of the instant crime or any other criminal activity by defendant.5 Rather, his evaluation served only as a neutral psychological profile based on the defendant’s family background, school, and work history, and the results of a battery of psychological testing. Mr. Crenshaw did not become an agent for the state securing disclosures to be used against the defen*305dant for a purpose of which the defendant was unaware. His only function was to provide his findings to the trial judge and this was the only use made of his report.
Finally, the defendant was not compelled to submit to this examination, and was not subject to any legal sanctions, such as the threat of contempt, had he chosen to remain silent. The very fact that the defendant was informed of the examination by the trial judge during formal proceedings, was provided with the Recorder’s Court "Consent to Examination” form explaining the purpose of the examination and the role of the examiner, and was asked whether he understood and was willing to proceed prior to his participation underscores the noncoercive nature of the examination. The defendant’s interview was not compelled and thus is not within the Smith proscription that a defendant may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.
Underscoring the importance of the purpose to which compelled disclosures are ultimately put, the Court has recently observed in Buchanan v Kentucky, 483 US 402, 425, n 21; 107 S Ct 2906; 97 L Ed 2d 336 (1987), that if upon being adequately advised, a defendant expresses his desire to refuse to answer any questions, a pretrial competency examination can still proceed "upon the condition that the results would be applied solely for that purpose,” cf. Estelle v Smith, supra, p 468. Thus, as the Court observed in Smith, the proper conduct and use of competency examinations are not frustrated, but the state must make its case on future dangerousness in some other way.
The clear import of those statements for the case at hand is that Smith precludes the use of *306statements "compelled” for one purpose as evidence in another proceeding against the defendant. The Fifth Amendment right in question is the right to decline to undergo a custodial inquiry in which defendant’s statements will be used for incriminatory purposes. It should follow that the statements in issue here which were obtained for a valid purpose and used solely for that nonevidentiary purpose do not implicate the Fifth Amendment.
It thus appears that the rule of Smith that the Fifth Amendment applies to preclude the use of compelled disclosures as evidence against a defendant is simply inapplicable in this instance. The facts leading that Court to conclude that the Fifth Amendment was applicable are not found here. The majority has offered no justification for the conclusion that the defendant had a Fifth Amendment privilege in this circumstance.
An examination of the cases dealing with Smith claims resulting from postverdict, presentence interviews or examinations reveals that only in the instance where a state agent sought a confession concerning additional criminal activity for which the defendant might have been prosecuted was the Fifth Amendment privilege deemed applicable. See Jones v Cardwell, 686 F2d 754, 756 (CA 9, 1982) (defendant was instructed by the court that he had no choice but to answer a probation officer’s questions); Arnett v Ricketts, 665 F Supp 1437, 1444 (D Ariz, 1987) (Miranda warnings were required before questioning concerning details of other crimes).
It is clear from the record here that the defendant was not questioned concerning other crimes for which he might have been prosecuted. His complaint centers on the trial judge’s consideration of the conclusion contained in the psychiatric *307report that defendant demonstrated an assaultive personality. The rule found in Jones and Arnett is, therefore, not applicable to this appeal.6
Smith does not command us to constitutionalize the sentencing process by applying Miranda Fifth Amendment jurisprudence to all presentence information received by the trial judge. In Smith, the defendant was examined only to determine his competence, but the state later used the psychiatrist’s testimony at the penalty phase of the proceedings. The Court held "these distinct circumstances,” 451 US 466, which included the fact that the defendant had not raised any issue of competency and had been given no notice that the results could be used against him at the sentencing phase, had denied the defendant his Fifth Amendment rights.
The Court’s holding was specific and limited:
A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. [Id., p 468.]
Moreover, the Court carefully noted that it was not holding that the same "Fifth Amendment concerns are necessarily presented by all types of *308interviews and examinations that might be ordered or relied upon to inform a sentencing determination,” id., p 469, n 13.
Smith does not dictate the result in this case.
ii
Assuming, arguendo, that the defendant enjoyed a Fifth Amendment privilege during the psychiatric evaluation, I cannot agree with the majority conclusion that defendant’s rights were not violated. I would not reach the question whether the full panoply of the prophylactic warnings required by Miranda must be given in this situation. I would conclude without reaching that question that if the Fifth Amendment is applicable to the use of a postsentence psychological interview for sentencing purposes, defendant would at a minimum, be entitled to a warning of his right to remain silent, failing which a resentence must be ordered.
It is clear on this record that the defendant’s statements were not involuntary as that term is historically defined in Fifth Amendment jurisprudence.7 The defendant was informed by the sen*309tencing judge while in the presence of counsel that he was to undergo a presentence investigation and psychiatric examination. By contrast, in the typical Miranda situation, the defendant is not afforded the opportunity to consult with counsel prior to the custodial interrogation. See United States ex rel Bachman v Hardy, 637 F Supp 1273 (ND Ill, 1986). It is the inability to seek the advice of counsel, to prepare for the possibility that the examiner may attempt to elicit privileged information, coupled with the pressures of the custodial environment, that triggers the need for the Miranda warnings. In this case, however, while defendant was obviously in custody at the time of the presentence examination, he was afforded ample notice and nearly two weeks to consult with counsel prior to his participation. Further, defendant was not under court order to cooperate with the examining psychiatrist, yet freely chose to do so after reviewing the "Consent to Examination” form prior to the examination which explained the purpose of the examination and asked whether he was willing to proceed.
Thus, the defendant was under no threat of legal sanction such as perjury or contempt for his failure to participate. When asked to participate, defendant surely had to weigh the possibility that his statements would aid the examiner in formulating an opinion as to his character, which in turn would become part of the presentence report for the sentencing judge to review. However, when offered the option to forego the examination, defendant freely chose to proceed. Defendant’s statements were voluntary and not compelled in viola*310tion of the Fifth Amendment. See United States v Barragan, 793 F2d 1255, 1260 (CA 11, 1986); United States v Jones, 640 F2d 284, 288 (CA 10, 1981).
This analysis does not end the inquiry, however. If the Fifth Amendment applies and the examination at issue constituted "custodial interrogation,”8 the question for resolution is whether the failure to provide the prophylactic rules developed to protect the right requires exclusion of the report at sentencing. The majority proceeds, at least implicitly, on the assumption that the psychological examination was custodial interrogation, yet finds no violation of defendant’s rights because the "inherently compelling pressures” typical of those prompting Miranda warnings are not found in this case. If the majority’s assumption is true concerning the custodial character of the psychological examination, I would conclude that defendant’s rights were not adequately protected.
To be sure, the United States Supreme Court has observed that Miranda warnings are not of constitutional dimension, but rather a means to protect fundamental rights.9 The Court has, how*311ever, albeit in dicta, recently observed in the context of evaluating rights attendant to a competency hearing when the trial judge has doubts about a defendant’s mental condition, see Pate v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966), that "the Fifth and Sixth Amendments would mandate that [defendant] be allowed to consult with counsel and be informed of his right to remain silent.” Buchanan v Kentucky, supra, 483 US 402, n 21. In this case it is clear that defendant was afforded the opportunity to consult with counsel, but it is equally clear that he was not told of his right to remain silent. Were I satisfied that the Fifth Amendment applied to the examination at issue and that the examination constituted custodial interrogation, as the majority plainly assumes, it would appear that the defendant’s sentence should be vacated notwith*312standing the precautions taken prior to the questioning.
in
Defendant further claims that Estelle v Smith, supra, requires us to conclude that his Sixth Amendment right to the assistance of counsel was violated. Estelle v Smith establishes that defense counsel must be given advance notice of a pretrial competency hearing where the results may be used as evidence on the issue of future dangerousness in a death-penalty proceeding. Defendant in this case acknowledges that counsel was given actual advance notice of the presentence psychiatric interview. Assuming that the Sixth Amendment advance notice holding in Smith applies to a postconviction presentence interview, I agree with the majority that defendant has failed to present any Sixth Amendment claim of error on this record.
Specifically, the defendant here contends that the Sixth Amendment mandates a) that the defendant and his trial counsel be informed that "defendant would be interviewed by a member of the clinic” and b) that counsel be present during the interview. As to the former contention, the defendant does not claim that counsel did not receive actual advance notice that an evaluation would be made. The defendant focuses on the adequacy of notice, asserting that counsel was not advised when the defendant would be interviewed or that the report would be based on a personal interview with the defendant, rather than a profile drawn from other sources. Because the defendant in this case is not claiming that counsel was not given advance notice that the examination was to be conducted, but, rather, contests the adequacy of the notice, we have no occasion to resolve the *313question as to whether the Sixth Amendment Smith holding applies in this case.10
I would conclude that, assuming arguendo that defendant enjoyed a Sixth Amendment right to advance notice to counsel of the examination,* 11 no violation of such right occurred. The defendant and his counsel received actual notice of the examination, and it appears that the Sixth Amendment does not require counsel’s presence during the examination.12
CONCLUSION
I agree with the majority that the defendant has failed to demonstrate a denial of either his Fifth or Sixth Amendment rights. I disagree with the majority to the extent it assumes that the Fifth *314Amendment right against self-incrimination is applicable in this context. I also agree that we need not reach the merits of the question whether the Sixth Amendment requires advance notice to counsel of a presentence psychiatric examination.
I would affirm the decision of the Court of Appeals.
Riley, C.J., and Griffin, J., concurred with Boyle, J.384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Defendant has also attempted to raise claims under Const 1963, art 1, §§ 17 and 20. While observing that these claims extend outside this Court’s order granting leave to appeal, we also note that defendant has not offered authority to support the argument that a different result should obtain under art 1, §§ 17 and 20 than under the Fifth and Sixth Amendments of the United States Constitution. Thus, we conclude that defendant’s appeal lacks an independent state ground and proceed to address his federal claims. Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983).
In People v Den Uyl, 318 Mich 645; 29 NW2d 284 (1947), this Court *301found that the privilege against self-incrimination under Const 1908, art 2, § 16 protects a witness in a state proceeding from testifying to facts which could lead to incrimination in a pending federal prosecution. Although preceding the United States Supreme Court’s decision in Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), which ruled the Fifth Amendment privilege against self-incrimination applicable to the states, DenUyl has been viewed as establishing that the privilege against self-incrimination applies when an appeal remains pending as to a conviction to which the statement would relate. See People v Giacalone, 399 Mich 642, 644, n 3; 250 NW2d 492 (1977); People v Lindsay, 69 Mich App 720, 722-723; 245 NW2d 343 (1976); People v St Onge, 63 Mich App 16, 18; 233 NW2d 874 (1975); People v Thomas, 55 Mich App 368, 370; 222 NW2d 320 (1974).
Counsel for the defendant does not contend that the defendant made statements during the interview regarding the crime he had been convicted of, and we therefore have no occasion to consider whether the defendant retained a Fifth Amendment privilege as to the crime of which he had already been convicted.
Further, we do not have capital punishment in this state, thus distancing the Smith rationale. The majority concludes that the Smith holding applies to noncapital proceedings. Ante, p 294, n 13. The courts have split on whether to limit Smith to capital sentencing cases, see, e.g., Baumann v United States, 692 F2d 565, 576 (CA 9, 1982); United States v Jones, 640 F2d 284, 288 (CA 10, 1981); cf. United States v Chitty, 760 F2d 425, 432 (CA 2, 1985).
There has here been no allegation and no showing that the examining psychologist employed statements taken from defendant concerning the details of the crime when he compiled his evaluation for insertion in the presentence report to the trial judge.
The Ninth Circuit soundly rejected this claim in Baumann v United States, 692 F2d 565 (CA 9, 1982). In Baumann, the defendant argued that an uncounseled interview with a probation officer for the purpose of constructing a presentence report constituted custodial interrogation requiring Miranda warnings. Rejecting the Smith analysis as factually inapposite, the Baumann court concluded that there was nothing of record to enable the court to find that the presentence interview in that case, or presentence interviews in general, "entail pressures at all similar to those 'which the Miranda Court found so inherently coercive as to require its holdings.’ ” 692 F2d 577. To do so, the court found, "would be to apply a principle 'broader than that required to implement the policy of Miranda itself.’ ” Id.
In Michigan v Tucker, 417 US 433, 441; 94 S Ct 2357; 41 L Ed 2d 182 (1974), the Court explained:
Before Miranda the principal issue in these cases was not whether a defendant had waived his privilege against compulsory self-incrimination but simply whether his statement was "voluntary.” In state cases the Court applied the Due Process Clause of the Fourteenth Amendment, examining the circumstances of interrogation to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary. See, e.g., Brown v Mississippi, 297 US 278 [56 S Ct 461; 80 L Ed 682] (1936); Chambers v Florida, 309 US 227 [60 S Ct 472; 84 L Ed 2d 716] (1940); White v Texas, 310 US 530 [60 S Ct 1032; 84 L Ed 1342] (1940); Payne v Arkansas, 356 US 560 [78 S Ct 844; 2 L Ed 2d 975] (1958); Haynes v Washington, 373 US 503 [83 S Ct 1336; 10 L Ed 2d 513] (1963). See also 3 Wigmore, Evidence (Chadbourn rev), § 815 et seq. *309Where the State’s actions offended the standards of fundamental fairness under the Due Process Clause, the State was then deprived of the right to use the resulting confessions in court.
It should be observed that there is an unargued and unresolved issue in this case whether the psychological interview was custodial interrogation and, if so, whether defendant made any inculpatory or exculpatory statements which the prosecution used against him absent Miranda warnings.
In Michigan v Tucker, supra, pp 438-439, the Court concluded that incomplete Miranda warnings did not deprive the defendant of his Fifth Amendment privilege. In reply to custodial police questioning which had not included the required Miranda warning that defendant would be furnished counsel free of charge, defendant gave the police the name of an individual he had allegedly been with at the time of the crime. When contacted by the police, this person said defendant had left him earlier in the evening on the night of the rape, and provided the police with admissions made to him by the defendant. At trial defendant’s own statements taken during interrogation were excluded, but the witness whose identity had been learned during the interview was allowed to testify that defendant had told him that the scratches on his face had been made by a "widow woman” who lived the next block over. As described by the Court, the issue was whether
*311proper regard for the privilege against compulsory self-incrimination requires, with limited exceptions not applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial. . . . [W]e believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent’s right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded.
The Court noted that the Fifth Amendment right against compelled disclosure had been given broad scope, but concluded that the facts of the case as compared to the historical circumstances underlying the privileges "strongly indicate[] that the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda.” Id., p 444. The Court concluded that the respondent’s statements could hardly be termed involuntary as that term had been defined in its decisions and also observed "[additionally, there were no legal sanctions, such as the threat of contempt, which could have been applied to respondent had he chosen to remain silent. He was simply not exposed to 'the cruel trilemma of self accusation, perjury or contempt.’ ” Id., p 445.
The wisdom of the traditional view that the Court does not resolve constitutional issues unnecessary to a decision, People v Adams, 430 Mich 679, 699; 425 NW2d 437 (1988), is particularly apropos here; the Sixth Amendment issue was not the subject of the order granting leave, and neither brief undertakes any significant analysis as to whether the Smith holding that the defense counsel must be given advance notice of such an examination applies, or whether, if error occurred, it was harmful. Satterwhite v Texas, 486 US 249; 108 S Ct 1792; 100 L Ed 2d 284 (1988). The prosecution appears to concede the issue, and the defendant’s brief does not dispute that notice was given. Having been informed of the purpose the examination would serve, "It can be assumed — and there are no allegations to the contrary, — ” that defense counsel consulted with the defendant about the nature of the examination, Buchanan v Kentucky, supra, 483 US 402.
We note that this Court has never held that a criminal defendant enjoys the right to the assistance of counsel during postconviction proceedings. In People v Gonyea, 421 Mich 462; 365 NW2d 136 (1984), three members of the Court found that the defendant possessed a right to counsel under Const 1963, art 1, § 20, during postsentencing proceedings.
See United States v Byers, 239 US App DC 1; 740 F2d 1104 (1984); Baumann v United States, n 6 supra at 578; People v Daniels, 149 Mich App 602, 609; 386 NW2d 609 (1986); People v Vroman, 148 Mich App 291, 297; 384 NW2d 35 (1985); People v Shively, 45 Mich App 658, 664-665; 206 NW2d 808 (1973); People v Burton, 44 Mich App 732, 734-735; 205 NW2d 873 (1973). See also anno: Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination, 3 ALR4th 910, 920-925.