(dissenting):
Dependent as they are upon human beings, few, if any, trials are perfect in observance of the rules of evidence and procedure. Recognizing that circumstance as to an error of the kind before us, we have uniformly held the record of trial must demonstrate a fair risk of prejudice to the accused to justify reversal of the findings of guilty. United States v Andrews, 16 USCMA 20, 36 CMR 176.
Here, the accused was observed in the act of rape; and he was identified by an eyewitness who remained unshaken throughout an extensive cross-examination. Yet, the majority tell us his conviction is unlawful because the court members could have drawn an improper inference of guilt from disclosure of the fact that he remained silent when questioned before the trial. I just cannot accept that conclusion.
The record of trial so compellingly demonstrates the accused’s guilt, that I find it impossible to conceive the risk of harm from the elliptical inference the majority draw from trial counsel’s cross-examination of the accused. I am strengthened in my belief by the instructions the law officer gave the court members on that point. He told the court members they could not treat the accused’s silence before trial “as in any manner being an admission of guilt.” He further advised them that every person has a right to remain silent, and he instructed that “not only does the law prohibit drawing”.an inference of guilt from the right to remain silent, but *574“it is also illogical to draw such an inference.”
I would affirm the decision of the board of review.