(dissenting):
In all matters but one I agree with the principal opinion. As to the exception, I agree with the conclusion reached by the board of review below that the accused himself opened the door to the admission of evidence of his silence before the psychiatric board at the Valley Forge Hospital.
By means of leading questions on cross-examination, defense counsel elicited from Dr. Nathan, a Government witness, an admission that he and other members of the medical board were “unable to determine” the accused’s ability to premeditate. Defense counsel did not ask the witness the reason for the medical board’s inability to make *101that determination. Standing by themselves, the form of defense counsel’s questions and the witness’ responses left the definite impression that the medical board had actually examined the accused, and could not make the vital finding as to his ability to premeditate because the facts disclosed by the examination left the matter shrouded in doubt. But that was not the truth. The real fact was that the medical board had never actually been in a position to evaluate the accused. It could not reach a decision only because the accused refused to submit to examination. Thus, the questions and answers represented a gross distortion of the real facts. In my opinion, the Government was entitled to correct the distortion and to bring out the true reason for the medical board’s inability to reach a finding. United States v Shaw, 9 USCMA 267, 26 CMR 47; Lee v State, 342 SW2d 753 (Texas).
The situation in the Shaw case, supra, is substantially similar to that present here. There the defense introduced a stipulation of expected testimony. According to the stipulation, a civilian psychiatrist examined the accused. In the course of the examination the doctor was informed by the accused that he could not recall what had happened during the series of events that led to the charges against him. The doctor concluded there was “a question whether . . . [the accused] knew right from wrong” as to the offenses charged. In rebuttal the Government called a Navy neuropsy-chiatrist. He testified he had examined the accused after the offenses, and the accused related to him many of the details of the acts. He also testified that the accused’s ability to recall and recount these details was inconsistent with the amnesic condition reported by the accused to the civilian psychiatrist. We sustained the admissibility of this rebuttal evidence on the ground the accused by his own act made admissible that which would otherwise be inadmissible.
Moreover, the circumstances of this case are materially different from those in United States v Kowert, 7 USCMA 678, 23 CMR 142, which is cited by my brothers as authority for reversal. In the Kowert case, the prosecuting attorney, as part of the Government’s case, repeatedly asked a witness about the accused’s reliance upon his right to remain silent. The testimony was entirely unrelated to any matters raised by the defense. Here, the reference to accused’s silence was essential to correct a wholly false impression injected into the case by the defense counsel. In Walder v United States, 347 US 62, 98 L ed 503, 74 S Ct 354 (1954), the United States Supreme Court held that a defendant who testifies falsely can be impeached by evidence obtained as a result of a constitutionally unlawful search. It said:
“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.
. . Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.”
True, there is here no direct per-j'urious testimony by the accused. But defense counsel’s cross-examination of Dr. Nathan intentionally created the premise for a false material conclusion. In my opinion, there is as little justification to permit indirect falsity as there is to sanction direct perjury. *102See United States v Beatty, 10 USCMA 311, 314, 27 CMR 385.
I would affirm the decision of the board of review.