(dissenting):
For hundreds of years, individuals, in reacting to one another, have applied the principle that an innocent person would object when faced with a baseless accusation.1 When, prior to trial,2 a person remains silent or gives an ambiguous reply to an accusation, such evidence, called a tacit admission, may be admissible in the case-in-chief or for impeachment purposes. Likewise, evidence that a defendant attempted to silence a witness is admissible. See Mil.R.Evid. 404(b), Manual for Courts-Martial, United States (1995 ed.).
FACTS
The afternoon following the alleged rape, appellant went to Sergeant (Sgt) David Piz-*242zulo’s home. According to Sgt Pizzulo, appellant told him that after the club closed, appellant asked Sgt Lance King to drop him by a house where there was a party. Sgt Pizzulo testified as follows:
A: [Sgt Lance King] [d]rove [appellant] to the house. And [appellant] had told Lance that there was a party there. And Lance had noticed that the lights were — that all the lights were out.
And [appellant] said, “Well, the party must have moved. Just drop me off here.” And so, Sergeant King dropped him off, and then I guess he went inside the house.
Q. What did he say about going inside the house?
A. He said he went inside the house, and that’s when he had gotten lucky. I guess he had met a girl or something, and they had — that was her house.
Police arrested appellant at Sgt Pizzulo’s house that afternoon. Appellant returned to Sgt Pizzulo’s house about a week later. Sgt Pizzulo testified to the following:
A: [Appellant] asked me did I tell anybody about what happened that night before—
Q: Why did he ask you that?
A: because of something about his son— you know— asking questions about it. And I told him, “No, I haven’t said anything to anybody about it.” And I asked him — to tell the truth, I really didn’t know what he got — you know— accused for—
Q: Did the accused say anything about your talking?
A: Yeah. He said, ‘Well, if you were a true friend, you wouldn’t say anything.”
A. I told him, ‘Well, I haven’t said a word about it.” And then I asked him — I said, ‘Well, what’d you get charged for?” I said, ‘Was it rape?” And then he didn’t say anything. I said, ‘Well, did you do it?” And he didn’t say anything after that, either.
Q: He never answered the question?
A: No, he didn’t.
The majority notes that it was not until after another person mentioned the rape that the victim made a complaint against appellant. There are many reasons why women do not want to admit what happened.3 Certainly, the victim could well have been embarrassed that appellant broke into her house at night, talked, and then committed forceful rape and sodomy on her.
DISCUSSION
This case requires an examination of the hierarchy of the sources of rights in the military.4 These include constitutional rights, which are superior to all other rights, and evidentiary rules.
Fifth Amendment
The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty, or property, without due process of law[.]” In a criminal trial, the defendant has the right to remain silent in the face of the prosecution’s evidence.5 The factfin-ders should draw no negative inferences from this silence.6 Nor can the prosecution comment upon the silence of the accused in face of these accusations.7
The federal courts allow an inference of guilt from the accused’s silence where the accused is not in custody and there have been no rights warnings.8
*243Appellant’s ease is not one in which his silence was temporally or geographically related to an arrest and warnings.9 Nor was this a ease in which the court admitted evidence of appellant’s silence when law enforcement officials made an accusation immediately after appellant’s arrest.10 Rather, in this case, appellant told his friend to keep quiet and did not respond to the queries of that friend, a subordinate. I conclude that the Fifth Amendment does not preclude admission of this evidence.
Evidentiary Rules
Mil.R.Evid. 304(h)(3) provides:
A person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation.[11]
History does not support the majority’s interpretation of Mil.R.Evid. 304(h)(3). The Manual indicates this rule is taken from paragraph 140a(4) of the Manual for Courts-Martial, United States, 1969 (Revised ed.), which in turn was taken from the Manual for Courts-Martial, United States, 1951, with minor changes. But the rule even predates the 1951 Manual.
The Manual Rules, starting with the 1951 Manual, were designed to set forth “rules of common application in the Federal courts.” Para. 140(a), Legal and Legislative Basis, 1951, Manual, supra.
Paragraph 127a, Manual for Courts-Martial, U.S. Air Forces, 1949, contains this language: “Courts should bear in mind that mere silence on the part of an accused when questioned as to his supposed offense is not to be treated as a confession or admission.” Virtually identical language was contained in paragraph 114a of the Manual for Courts-Martial, U.S. Army, 1928, and paragraph 225(d) of the Manual for Courts-Martial, U.S. Army, 1921, with no citation of authority for any of the rules. Each of these Manuals contained a comment about applying the rules commonly applied in the federal courts. See para. 124, 1949 Manual, supra; para. Ill, 1928 Manual, supra; para. 199, 1921 Manual, supra. Interestingly, Colonel Winthrop stated, “Confessions made by private soldiers to officers or noncommissioned officers, though not shown to have been made under the influence of promise or threat, should yet, in view of the military relations of the parties, be received with caution---Mere silence on the part of an accused, when questioned as to his supposed offense, is not to be treated as a confession.” W. Winthrop, A Digest of Opinions of the Judge Advocate General of the Army, para. 13 at 398 (1895). Winthrop (398 at n.2) cites for his authority Campbell v. State, 55 Ala. 80 (1876).
In Campbell, Thompson was the defendant’s neighbor and noticed some missing ears of corn from his field. Thompson traced some unusually shaped footsteps to Campbell’s field and saw some corn drying in the sun near Campbell’s home. Thompson accused Campbell of stealing the com but the defendant remained silent. Id. at 81-82. At trial, the judge admitted Thompson’s testimony as to this exchange and instructed the jury that “the fact that the person who is charged with the commission of a crime says nothing, but remains silent, is a circumstance to which the jury may look as a confession of guilt.” Id. at 84. The court held that *244Thompson’s testimony was admissible but the instruction was error. The Campbell court reasoned:
In Bob v. The State (3[2] Ala. 560, 565-66 (1858)), the accused, a slave, was indicted for an assault with intent to murder his master; and during a conversation among white persons, in the presence of his master and of the accused, the measure of a track of the person who had made the assault, was applied to the defendant’s shoes, and found to correspond exactly with them; whereupon some of the persons present exclaimed, that those were the shoes that made the tracks of the guilty man; and Bob made no answer. His silence, under these circumstances, was given in evidence against him. This court humanely decided, that the evidence ought not to have been received at all; because, “the habitude of thought and feeling, the consciousness of inferiority, and the subordination and discipline belonging to his condition, made it perfectly natural that he should be silent, * * * from an apprehension that a contradiction might be deemed impertinence.”
55 Ala. at 84. The Bob case makes the point that, where there is a superior-subordinate relationship, it would be “perfectly natural” for the subordinate to remain silent in the face of a superior’s accusation.
As with modern courts, Campbell indicated evidence of silence in the face of an accusation should not be admitted “unless the evidence is of direct'declarations, of that kind which naturally call for contradiction.” The court reasoned that jurors should treat such evidence with care. Id.
By citing Campbell, Winthróp recognized the dividing line between superior and subordinate relationships and sought to protect military members accused by a superior. Thus, Mil.R.Evid. 304(h)(3) should not negate an inference of guilt from silence in all cases but only when there is an official investigation underway or the individual is subject to arrest or custody.12
Mil.R.Evid. 304(h)(3) has never been invoked by the appellate courts when the accused is not in confinement, under arrest, or in custody and being questioned by official investigators.13
Relevance
Even though Mil.R.Evid. 304(h)(3) does not preclude the admission of appellant’s silence, the evidence must also be both logically and legally relevant.
■ Evidence is logically relevant under Mil. R.Evid. 401 if it has a tendency to make the existence or nonexistence óf a fact more probable or less probable than it would be without the evidence. See Mil.R.Evid. 402. Here, we consider appellant’s silence in relation to the two questions: “Was it rape?” and ‘Well, did you do it?” Was this silence logically relevant? Normally, an innocent person would respond that the victim was making a false allegation of rape.
An argument against admitting evidence of a defendant’s silence is that there are many legitimate reasons that an individual might choose not to respond to an accusation. The media has made people aware that there is a right to silence. A defendant might also wish to remain silent because he or she is embarrassed or angered by the accusation. These scenarios raise questions about the logical relevance of a defendant’s silence.
Here, the defense theory of the case was that the sexual intercourse and sodomy were consensual, as evidenced by the fact that appellant danced with the victim and kissed her a number of times that evening. In support of this position, the defense argued that appellant did not unlawfully enter into the house.
*245Considering the defense theory, one must conclude that a reasonable, innocent person would deny the accusation of rape. Appellant heard and understood the questions and was free to reply to them. If appellant had not committed the crime, the essence of his reply would have been the heart of the theory which the defense put forth at trial, i.e., consent.
Additionally, it is important to consider the context of Sgt Pizzulo’s questions to appellant. Prior to his arrest, appellant told Sgt Pizzulo that he had gotten “lucky” the previous night. It would be reasonable for an innocent person to claim consent under these circumstances. I conclude that appellant’s silence in response to Sgt Pizzulo’s questions is logically relevant.
As to legal relevance, there are various dangers in admitting this type of evidence, such as encouraging the prosecutor to manufacture silence, the ambiguity from silence, and the constitutional limitations of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is no indication that the query or the silence here was manufactured. However, there is an ambiguity in appellant’s silence, just as there is an ambiguity in the victim’s not immediately reporting a rape. Additionally, this is not silence while subject to custodial interrogation or silence soon after a rights’ warning. Nor is this an instance where appellant did not understand the question or did not have the means to answer it because he did not have information within his own personal knowledge. Finally, introduction of this evidence does not impinge on appellant’s right to remain silent. Thus, appellant’s silence was legally relevant.
There are several arguments trial defense counsel could have advanced following introduction of this evidence. However, when all the evidence is considered together, the logical inference is that appellant did not want anybody to talk about what happened on the night in question. The fact that the lights were out at the victim’s house certainly rebuts any assertion by appellant that there was a party. The rational inference when all the evidence is considered together is that appellant was attempting to spoil the evidence. Spoliation certainly is admissible under Mil.R.Evid. 404(b). The factfinders could find that appellant’s failure to deny the accusation of rape or to explain what happened rebuts the defense of consent. Fact-finders are not asked to draw an inference respecting circumstances of which appellant had no knowledge. This was a swearing contest between appellant and the victim.
Additionally, much of the evidence that the majority uses to demonstrate the prosecution’s weakness, ie., psychiatric evidence used to impeach the victim, 48 MJ at 238, is generally held inadmissible unless the witness “exhibited a pronounced disposition to lie or hallucinate, or suffered from a severe illness, such as schizophrenia, that dramatically impaired her ability to perceive and tell the truth.” United States v. Butt, 955 F.2d 77, 82 (1st Cir.1992).
If such evidence, plus SSgt H’s comments to CL, establish the prosecution’s weakness, the corresponding reaction of the defendant when asked by a friend about the charges should be admissible as relevant. The court members may then decide the weight to give the reaction of both individuals.
Even if silence was not legally relevant, one has to question whether appellant was prejudiced in light of the judge’s instructions. Regarding the impact on the right to remain silent, the judge instructed the members of the following:
The accused has an absolute right to remain silent. You will not draw any inference adverse to the accused from the fact that he did not testify as a witness. The fact that the accused has not testified must be disregarded by you.14
*246The judge then instructed the members on the presumption of innocence, the standard of guilt beyond a reasonable doubt, and the burden of proof always being on the prosecution and never shifting to the defense.
For these reasons, I dissent.
. An early exposition of the rule is the maxim of Pope Boniface VIII: “Qui tacet, consentiré vide-tur,” or "He who is silent shows agreement.” 5 Pope Boniface VIII, Book of Decretals, ch. 12 § 43 (c. 1300).
. In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that a prosecutor’s comment on a state defendant’s failure to testify was unconstitutional. That case overruled holdings in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) and Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), which permitted comment on a state defendant’s failure to take the stand and allowed the jury to consider it during their deliberations.
In Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), the Supreme Court held that the trial judge must give a no-adverse-inference instruction upon request.
. See Berger, Man's Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 22-32 (1977).
. See, e.g., United States v. Lopez, 35 MJ 35 (CMA 1992).
. Griffin, 380 U.S. at 613-14, 85 S.Ct. 1229.
. Carter, 450 U.S. at 301, 101 S.Ct. 1112.
. Griffin, 380 U.S. at 615, 85 S.Ct. 1229.
. See United States v. Aponte, 31 F.3d 86, 87 (2d Cir.1994); United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991); United States v. Andrus, 775 F.2d 825, 839-40 (7th Cir.1985); United States v. Moore, 522 F.2d 1068, 1075 (9th Cir. 1975); see also 8 Wigmore, Evidence § 2250 at 267-70 (McNaughton rev.1961).
. In Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court stated that silence following Miranda warnings is "insolubly ambiguous” and, thus, not admissible.
. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court held that comment on a defendant’s silence before an arrest and rights’ warning did not violate the constitutional rules when used to impeach the defendant’s testimony. Likewise, in Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Supreme Court held that a defendant’s silence after an arrest but before rights’ warnings could be used to impeach the defendant without violating the Due Process Clause.
. The warning rules do "not specifically deal with the situation in which an ‘innocent’ question is addressed to a suspect and results unexpectedly in an incriminating response which could not have been foreseen.” Drafters’ Analysis of Mil.R.Evid. 305(b)(2), Manual for Courts-Martial, United States (1995 ed.), at A22-14.
. Winthrop recognized in the 1800s that the rule against admission of silence requires that there be some element of officiality or a query by a superior for the rule to be invoked, much like the requirements of Article 31, Uniform Code of Military Justice, 10 USC § 831.
. See, e.g.. United States v. Wynn, 29 MJ 143 (CMA 1989)(questioning by exchange store detective who was private party); United States v. Cain, 5 MJ 844, 848 (ACMR 1978)(questioning by victim); United States v. Armstrong, 4 USCMA 248, 15 CMR 248 (1954)(questioning by friend of accused).
. The federal courts have the following instruction as to silence in the face of an accusation:
Evidence has been introduced that statements accusing the defendant of the crime charged in the indictment were made, and that the statements were neither denied nor objected to by the defendant. If you find that the defendant actually was present and heard and understood the statements, and that they were made under such circumstances that the statements would have been denied if they were not true, then you may consider whether the defendant’s *246silence was an admission of the truth of the statements.
S. Saltzburg and H. Perlman, 3 Federal Criminal Jury Instructions Appendix II, § 3.12 (1985).