dissenting.
Although I am in agreement with the majority that the trial court generally has the discretion to determine whether to permit witnesses who intend to invoke their Fifth Amendment privilege to take the stand, I must respectfully dissent. I am convinced that the unusual facts of this case illustrate the defendant’s “end of the spectrum”, mirroring the prosecutor’s “end” defined in State v. Wright, 582 S.W.2d 275 (Mo.1979) (en banc).
In Wright, the trial court permitted the prosecutor to put a witness on the stand who invoked the Fifth Amendment in the presence of the jury. The court acknowledged that the question whether such a witness should be permitted to testify generally rests in the discretion of the trial court. Nevertheless, the court stated “[t]hat discretion, of course, can be abused” and in fact, was abused in that case, where the prosecutor’s sole purpose was to have the jury hear the witness invoke the privilege. The court referred to this as “one end of the spectrum” and granted defendant a new trial.
The Wright decision is most instructive when viewed against the backdrop of those cases in which the trial court’s discretion was held not to be abused. In United States v. Quinn, 543 F.2d 640, 650 (8th Cir.1976), the court stated that the prosecutor’s calling of a witness who has informed the court that he will involve the Fifth Amendment
may or may not call for a mistrial; each case must be decided in light of its own facts and circumstances, and consideration must be given to the motive of the prosecutor in calling the witness and to the likelihood of the jury drawing unwarranted inferences against the defendant *481from the fact that the witness has declined to testify on constitutional grounds.
There, with no indication that the prosecutor’s sole purpose was to have the jury hear the witness claim the privilege, and with a need by the government for the full testimony of the witness, calling the witness was held not to justify a mistrial. Similarly, other federal courts have found no abuse of discretion in permitting a privilege-invoking witness to take the stand. United States v. Vandetti, 623 F.2d 1144, 1147 (6th Cir.1980) (where the prosecutor’s case will be seriously prejudiced by the failure to offer the witness); Rado v. Connecticut, 607 F.2d 572 (2nd Cir.1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980) (where certain factors are considered, such as the prosecutor’s intent in calling the witness, the number of questions, the importance of the witness to the state’s case, and whether the prosecutor believed the witness actually was entitled to a Fifth Amendment privilege); United States v. Compton, 365 F.2d 1, 5 (6th Cir.) cert. denied, 385 U.S. 956, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966) (where the prosecutor has reason to believe that the witness has information pertinent and admissible in the absence of the invocation of the privilege).
In other words, when some factor other than a prosecutor’s desire simply to have the jury hear the invocation of the privilege is present, the trial court’s discretion is generally respected.
Here, of course, the defendant rather than the prosecutor wished the jury to hear the witness invoke the privilege.
Defendants are given no greater right than prosecutors to have such “testimony” heard and, in fact, those federal circuits which have considered the question have concluded that a trial court acts within its discretion in refusing to allow a defense witness to take the stand merely to refuse to testify on Fifth Amendment grounds. See United States v. Harris, 542 F.2d 1283 (7th Cir.1976); United States v. Lacouture, 495 F.2d 1237 (5th Cir.) cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); United States v. Johnson, 488 F.2d 1206 (1st Cir.1973); United States v. Beye, 445 F.2d 1037 (9th Cir.1971); Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). The reason given for this conclusion is that just as a prosecutor putting on such a witness with some connection to the defendant hopes to create an inference of guilt by association, a defendant hopes that the jury will infer that if the witness has something to hide, that witness must be guilty rather than the defendant. As the court stated in United States v. Bowman, 636 F.2d 1003, 1013—14 (5th Cir.1981), “neither side has the right to benefit from any inference which the jury may draw from the witness’ assertion of the privilege ... because such inferences are of dubious probative value and have a high potential for prejudice.”
The rationale of Wright, however, suggests something more. It indicates that the trial court may abuse its discretion in permitting a witness to take the stand where the prosecutor’s motive is completely improper, i.e., to create an adverse inference. That was one end of the spectrum. That same discretion may be abused where the defendant’s motive is entirely proper, i.e., to dispel an inference in the minds of the jury created by the absence of an available witness said by the defendant to be able to support his version of the facts. That is the opposite end of the spectrum.
This case, the other “end of the spectrum” is entirely distinguishable from the situation where a defendant wishes simply to create an inference of guilt in another, a trial tactic to which he has no right. Here, the record does not suggest that defendant wished to call Mr. Jackson so that the jury might infer that he, by taking the Fifth Amendment, was the guilty party. He simply wanted the jury to know that Mr. Jackson’s absence stemmed not from the defendant’s fear that the witness would prove *482him to be lying, but from Mr. Jackson’s own reasons, whatever they might be.1
The majority opinion would suggest that because the defendant had not claimed that Mr. Jackson was involved in criminal activity (but had merely observed voluntary sexual acts by the alleged victim), and because the jury could infer that Mr. Jackson’s invocation of the privilege implied criminal activity on his part, the result could have been an inconsistency discrediting the defendant. That may be so, but the decision whether Mr. Jackson’s invoking of the Fifth Amendment privilege would benefit or prejudice the defendant was a matter of trial strategy in which the court had no right to interfere.
As the court said in Bryant v. State, 563 S.W.2d 37, 45 (Mo.1978) (en banc), “the responsibility for representing a defendant, including the making of numerous decisions throughout the proceedings, is lodged with defense counsel. Courts ought not interfere with defense counsel’s responsibility in this regard unless the facts of the situation clearly demonstrate that justice requires the interference.” Here, where counsel made his decision known to the court,, and the court was well aware of the unusual box in which defendant had inadvertently placed himself, the court was duty-bound to allow defense counsel to decide how best to extricate his client. The possibility that the tactic might have been less than 100% successful is irrelevant. Nothing in the facts of this case suggests that “justice requires the interference.”
Moreover, the court’s obligation here to allow the witness to testify is firmly rooted in the principle that just as prosecutors occupy a “quasi-judicial position,” charged with the duty “to seek justice, not merely to convict”, Rule 4, EC 7-13, judges share that responsibility. See State v. Stockbridge, 549 S.W.2d 648, 651 (Mo.App.1977). Our courts have a duty to provide defendants with a fair trial by taking affirmative action to prevent unfairness. Trial judges are not mere disinterested bystanders or even mere referees. A court abuses its discretion if, by its refusal to prevent improper inferences from being created or from not being dispelled, it permits unfairness. Where no hint appears in the record that justice and the search for truth would have been subverted by the testimony of Mr. Jackson, and where the possibility was readily apparent that the testimony could have precluded an unfair and unsupported inference, the trial court had the duty to take some remedial action to offset the improper inference. This was exactly the kind of inference which the Supreme Court found to be unfair in State v. Wright, supra, and unlike those referred to in United States v. Bowman, supra, the inference which might be drawn from Jackson’s appearance had no real “potential for prejudice.”
As stated in State v. Wright, supra, at 283,
It would seem obvious that this problem does not lend itself to solution by any hard and fast rule. It is a matter that requires the exercise of sound judgment *483giving due consideration to the facts and circumstances prevailing at the time the question arises. What we can be certain of, however, is that one end of the spectrum has been reached .... (Emphasis added.)
A consideration of the “facts and circumstances prevailing” in this case indicates that the pendelum has now swung fully from Wright (defining the extreme whereby a trial court abuses its discretion in permitting the prosecution’s witness to invoke his Fifth Amendment privilege solely to create an adverse inference) to left, mirroring that abuse where the defendant seeks only to dispel an adverse inference inadvertently created before becoming aware that his witness would invoke the privilege. On this ground, we should reverse and remand for new trial.
. Research has revealed only one case, United States v. Lacouture, supra, in which a defendant was caught in a comparable dilemma. There, defendant was charged with possession of mescaline found in the trunk of a car which she was driving. She was not the owner of the car, a fact relevant to the issue of whether she had control of the drugs. At trial, a Mrs. Coleman was identified before the jury by a government witness as the car’s owner, and her presence in the courtroom was noted. Later, Mrs. Coleman advised the court that if called, she would invoke the Fifth Amendment. The court ruled that she would not be permitted to testify. Just as in the case before us, the jury was left a negative inference resulting from the defendant’s apparent failure to call this person who could shed light on the defendant’s lack of control over the car. With this and nothing more, I would simply conclude that the Fifth Circuit was wrong in not recognizing the defendant’s right to dispel the inference created by the witness’ absence. However, there Mrs. Coleman was not merely an alleged observer, as is Mr. Jackson, but, as owner of the car, if defendant were not guilty of possession, Mrs. Coleman almost assuredly would be. She was, as the court said at 1241, a “virtual defendant”. Her testimony, then, would have been far more likely than Mr. Jackson’s to create the “if this witness has something to hide, defendant must be innocent” inference to which a defendant is not entitled.