(concurring):
I concur in the result reached by the court but for the reason that the petitioners have been denied the right of confrontation under the Sixth Amendment. I thus avoid any possible implication that a determination of prosecutor-ial misconduct of the type here involved is an indispensable prerequisite to the determination that a defendant has been deprived of his federal constitutional rights.
In the case before us, the prosecutor, as part of the state’s case, called a witness and asked him a series of questions designed to elicit testimony connecting him with the petitioners and corroborating the state’s evidence on the issue of petitioners’ identification. The witness pleaded the 5th Amendment to all the questions. His silence could have been used by the jury as evidence against the petitioners on the crucial issue of identification, upon which issue the evidence was not otherwise overwhelming. Thus critical weight was added to the case against petitioners in a form not subject to cross-examination, and there resulted unfair prejudice to petitioners. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).