(concurring in part and dissenting in part):
I am enabled to concur in part with my brethren largely because of their explicit statement in footnote 18 that:
We do not suggest that our disposition of these cases should be taken as a final and unalterable evaluation of all Constitutional questions which may arise out of the Act’s administration. We would not consider ourselves bound by today’s decision in a future case if later experience should show serious unfairness in the administration of the Act.
This is a wise and necessary reservation and deserves emphasis, for as Judge Bell observed in Sas v. State of Maryland, 334 F.2d 506, 516 (4th Cir. 1964), the Act is “fraught with the possibility of abuse * * * if not administered in the spirit in which it is conceived *
One of the issues we should consider open for future evaluation is the adequacy of treatment at Patuxent. Our approval of the Maryland Defective Delinquent Act is grounded partly on the assumption that the state will continue to furnish Patuxent with sufficient funds, personnel and facilities to justify realistic hopes of rehabilitating its inmates. Any future review must appraise not only the general treatment program, but whether the particular prisoner before the court is receiving the benefits of Patuxent’s program. It does him no good if there is a program of treatment, but it has been arbitrarily withheld from him.1
Notwithstanding the District Court’s finding that treatment at Patuxent is presently adequate, this remains an undeniably difficult case. The majority dismisses petitioners’ serious constitutional challenges by the simple expedient of labeling the defective delinquency proceedings “civil.” But the attempt to sidestep constitutional issues by asserting that the process is “noncriminal” was disapproved by this court in Sas, supra, as a “futile exercise in semantics” and has been expressly rejected by the Supreme Court as insufficient justification for disregarding the strict safeguards accorded in criminal cases.2 As *1160that Court recently noted in the context of the juvenile process: “[Cjivil labels and good intentions do not themselves obviate the need for criminal due process safeguards * * *.” In re Winship, 397 U.S. 358, 365-366, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).
The guarantees constitutionally required in criminal prosecutions are dictated by the severity of the sanctions imposed, which may deprive an individual of his liberty. The consequences of commitment under the Patuxent scheme are hardly less onerous. Pa-tuxent inmates are involuntarily confined under maximum security conditions. Some may remain at Patuxent in a prison-like environment for life because they are deemed too dangerous either to life or to property to be released. As the District of Columbia Circuit has aptly noted: .
[W]hen a determination of “dangerousness” will result in a deprivation of liberty, no court can afford to ignore the very real constitutional problems surrounding incarceration predicated only upon a supposed propensity to commit criminal acts. Incarceration may not seem “punishment” to the jailors, but it is punishment to the jailed. Cross v. Harris, 135 U.S.App.D.C. 259, 418 F.2d 1095, 1101-1102 (1969).
Although prisoners are entitled to due process protections regardless of the nature of the proceeding, and the Defective Delinquent Act is in many ways indistinguishable from a criminal statute, an unmodified application of the full procedural safeguards afforded in criminal cases may render the Act unworkable. The Maryland act represents an innovative approach appropriate to deal with an identifiable segment of the criminal population, and until the results can be adequately appraised, some flexibility in the procedures employed by the state is justified. While experiments in penology do not warrant suspending constitutional rights, the unique context in which the Act operates may justify some variation in the manner of their application. However, because, the Maryland act bears such close resemblance to the criminal process, the state must make the least drastic departure from the safeguards applicable to criminal proceedings as will avoid destruction of the statutory scheme. The means employed to resolve the dilemma must not sacrifice the essentials of the constitutional safeguards, and the burden of justifying any challenged procedure or practice rests upon the state.3
I. RIGHT AGAINST SELF-INCRIMINATION
Upon referral to Patuxent, a prisoner is required to submit to a battery of tests and interrogations by the social service staff, a psychiatrist and a psychologist. The statute directs the staff to make inquiry into the crime for which the prisoner has been sentenced and the circumstances surrounding the crime. The interviews also focus on any other crimes and antisocial behavior in his *1161past. There is no contention by the state that the disclosures are voluntary.
The history of petitioner Bradley Avey aptly illustrates the consequences of refusal to submit to the examinations. Avey was committed in December 1965 for an evaluation by the staff. For four years' he continuously refused to submit to personal interviews on the ground that his right against self-incrimination would be violated. Consequently he never received a hearing on his defective delinquency status and remained in the receiving ward of the Institution.4 The case presented by petitioner Avey is not an unusual one. The Institution admits that it has a substantial number of inmates who refuse to submit to the interrogation by the medical and social services staff, and whose judicial hearings are delayed until their cooperation can be achieved. The Director of Patuxent states that an inmate’s persistent refusal to be examined could indefinitely postpone any judicial hearing, and result in confinement for the rest of his life. The Maryland Court of Appeals has upheld the legality of this practice. State v. Musgrove, 241 Md. 521, 217 A.2d 247, 252 (1966).5
The reluctance of Patuxent inmates to respond to the staff’s probing is understandable. Admissions made concerning mental state and past criminal behavior provide significant evidence for the state to use at the judicial hearing on defective delinquency.6 The petitioners maintain that they have an absolute right to silence, and cannot be forced to reveal information which may be used against them. But determining defective delinquency involves essentially an inquiry into the state of the inmate’s *1162mind. Denied direct access, the state psychiatrists would be relegated to secondhand information in arriving at a diagnosis. In United States v. Albright, 388 F.2d 719 (4th Cir. 1968), this court emphasized the necessity for a government psychiatric examination where the mental condition of a criminal defendant was in issue. It was reasoned that the defendant had waived his right to silence by raising the insanity issue as a defense, but the underlying thrust of the Albright opinion was the recognition that a reliable inquiry into the defendant’s mental state is possible only with his active cooperation.
With the continuing reservation that this issue is open to further consideration, I agree, for the present, that the right against self-incrimination cannot be rigidly applied in Patuxent proceeding. I rest, however, not on the asserted ground that the Act is “civil” but that, because of the unusual nature of the necessary inquiries, the legitimate objectives of the legislation would be frustrated were inmates permitted to refuse cooperation. Granting the inmate the right to silence would in many instances thwart the personal examinations and interviews considered indispensable in determining whether the prisoner is or is not a defective delinquent.7
II. THE RIGHT OF CONFRONTATION
The records compiled by the Patuxent staff, upon which they rest their conclusions, contain extensive reports from various sources as to the inmate’s past criminal and antisocial behavior. These reports are admissible at the judicial hearing, though based on observations and conclusions of persons who do not testify in court. The introduction of this hearsay evidence in a criminal prosecution would unquestionably violate a defendant’s right to confront and cross-examine witnesses against him as guaranteed by the Sixth Amendment.8
The hazard of hearsay reports is that they may become vehicles whereby false allegations enter the judicial proceedings — allegations which the prisoner may be hard pressed to refute. Although any witness subject to the jurisdiction of the court may be subpoenaed, the prisoner’s counsel may often be unable to find and produce witnesses to contest reported incidents thus introduced at the judicial hearing.
Yet it must be recognized that a meaningful evaluation of the inmate’s mental condition will often depend on an assessment of numerous incidents, some long in the past. If the jury is to be apprised of the considerations underlying the psychiatrists’ conclusions without imposing a truly impossible burden on the state authorities, flexibility in departing from strict rules of evidence may be unavoidable. At issue is the subject’s entire lifetime behavioral pattern, not whether a certain act was committed. In light of the special and unusual nature of the inquiry, hearsay evidence may be necessary for the staff to rely upon in forming its opinion; and if in the subsequent judicial review the jury is not to abdicate its obligation to *1163make an independent judgment, it must, in its turn, have access to all of the information, including the hearsay evidence, underlying the expert opinion of the psychiatrists. Thus the experts are afforded the latitude essential to perform their function and the jury is not restricted in its purview of the case. Nevertheless, no evidence denying a prisoner the right of confrontation should be admitted unless indispensable to explain to the jury the foundations of the psychiatric opinions; admission of such evidence is hardly justified where the psychiatrists have relied primarily on personal interviews and available witnesses in forming their conclusions.
Of course, beyond the confrontation issue, due process commands that a reliable evidentiary foundation be laid in defective delinquency proceedings, as in any other proceeding, civil or criminal. Accordingly, any assessment of the sufficiency of the evidence to support a defective delinquency finding involves scrutiny of the character as well as the substance of the admitted evidence. If at the judicial hearing there appears serious doubt as' to the reliability or trustworthiness of the reports of antisocial or criminal behavior, the trial judge should in the exercise of his discretion exclude the hearsay. Likewise, as to hearsay evidence which is admitted, the jury should be duly cautioned on the risks inherent in any hearsay testimony.
III. RIGHT TO COUNSEL
Although counsel is provided at the judicial hearing itself, he is presently entirely excluded from the interrogations and investigations conducted by the staff for the purpose of determining defective delinquency. One perceives a strong analogy, however, between the initial steps at Patuxent and the pretrial stages of criminal prosecutions in which the Supreme Court has insisted on the right to counsel: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (police interrogations) ; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineups); and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary hearings before magistrates). Both the Patuxent prehearing stages and preliminary criminal phases are critical links in chains potentially leading to long confinement, and the same due process considerations dictate counsel’s presence under both schemes. The assistance of counsel during the fact-gathering and adjudicating process at Patuxent might protect the inmate against misguided or erroneous conclusions by the staff9 and could facilitate timely discovery of the nature of the state’s case, making possible the preparation of a proper defense at the judicial hearing.
As discussed in the preceding section, the record compiled by the staff embodies an accumulation of information some of which may be of doubtful re*1164liability. The inmate’s background is by the staff’s own admission one of the most important factors, if not the single most important factor, in diagnosing the inmate. If the history is inaccurate, the medical evaluation is liable to be incorrect. There must be an early opportunity for counsel to question the contents of the inmate’s dossier to avert the danger of a vital staff recommendation being founded on false data.
The majority makes this interesting suggestion:
“ * * * it might prove fruitful to permit the independent psychiatrist to participate in the proceedings at an earlier stage than is presently allowed; his participation in staff conferences may be beneficial to the staff and to the inmate he examines.”
I agree, but do not see why a measure of participation by counsel should not be tolerated. As Judge Bell of this court has declared:
“ * * * there is no reason to assume that reputable counsel and psychiatrists could not cooperate in the administration of tests and the necessary factual investigations of the patient’s background to verify or refute his own statements.”
Timmons v. Peyton, 360 F.2d 327, 331 (4th Cir. 1966).
Indeed, there is reason to think that much of the present resistance of prisoners to submitting to the Patuxent interrogations arises from suspicion and misunderstanding on their part which a lawyer could in many eases dispel, thus facilitating the staff’s work. Staffmen, at the beginning at least, are likely to be suspect simpily because they are members of the institutional apparatus.
The retained or appointed counsel should consult with the prisoner as soon as practicable after his admission to the Institution. I would not insist that counsel be present during the individual psychiatric examinations, but counsel should be allowed access to the information concerning the prisoner’s history as it is assembled. When the inmate is admitted into the final conference for questioning by the staff, counsel should be allowed to attend, to interrogate his client in order to clarify matters in dispute, and to make a statement on his client’s behalf. Although the staff may of course consult with one another in private, a free and open discussion by counsel with the psychiatric staff as to the basis of their report should be encouraged. It would enhance the fairness of the process and enable counsel to obtain a minimal familiarity with the complex psychiatric issues a defective delinquency determination is likely to involve. It is not my purpose to convert the staff conference into a full-fledged adversarial proceeding, but only to guard as far as possible against the informal fact-gathering’s resulting in an inaccurate factual basis for the psychiatrists’ conclusions.
There is no justification for the unlimited confidence accorded to the staff members and the apprehensions the majority expresses over the allowance of any role to lawyers. I rather think that the staff is inclined to overestimate the need and the usefulness of secrecy, and that if a more flexible policy were adopted it would be found not unworkable, but beneficial. It would help to clear away suspicion that fundamental fairness is being destroyed under a cloak of concealment.
The above suggestions with respect to the right of counsel are advanced tentatively. If adopted, they should be deemed, like other conclusions of mine and the majority’s own holdings, subject to review and reconsideration from time to time as experience dictates.
IV. THE STANDARD OF PROOF
The Defective Delinquent Act does not itself specify the burden of proof that the state must sustain in order to commit an individual to Patuxent for an indefinite period. The Maryland courts have sanctioned the civil standard of “fair preponderance.” See Purks v. State, 226 Md. 43, 171 A.2d 726 (1961).
*1165The petitioners assert on the contrary that due process requires the state to prove “beyond a reasonable doubt” that the inmate is a defective delinquent. They rely on the recent Supreme Court case of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which invalidated a New York statutory provision allowing juvenile delinquency determinations to be made upon a preponderance of the evidence. The Court held that proof beyond a reasonable doubt is constitutionally required in adjudications of juvenile delinquency as in criminal trials. It expressly rejected the New York Court of Appeals’ view that there was only a “tenuous” difference between the reasonable doubt and the preponderance standards. The Supreme Court would not acquiesce in this minimization of the difference. Instead it stressed the danger that the lesser standard might be misinterpreted as calling on the trier of fact “merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.” 397 U.S. at 367, 90 S.Ct. at 1074. The reasonable doubt standard is indispensable in both criminal and juvenile proceedings, according to the Supreme Court, for “it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.” 397 U.S. at 364, 90 S.Ct. at 1072.
The objections to the preponderance standard apply with equal force in defective delinquency hearings — indeed they are even more compelling in the latter class of cases, since indefinite incarceration is at stake. Due process commands that the jury must be satisfied beyond a reasonable doubt as to all objective facts in dispute, including the truth of any alleged incidents relied upon by the psychiatrists in reaching their recommendation.
It must be recognized, however, that as to the ultimate issue of the inmate’s dangerousness, the beyond a reasonable doubt standard may in practical operation be too onerous. After all, the ultimate issue is not as in a criminal case whether an alleged act was committed or event occurred, but the much more subjective issue of the individual’s mental and emotional character. Such a subjective judgment cannot ordinarily attain the same “state of certitude” demanded in criminal cases. A number of commentators have suggested that a standard lying between the civil and the criminal may suffice where a determination of “dangerousness” is at issue. Frequently advocated is a standard of “clear and convincing evidence.” 10
This measure of proof is not entirely lacking in judicial support. In Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Supreme Court was faced with a dilemma similar to the one we now confront. The issue was what standard of proof is required in deportation proceedings. The Court held that deportation could not be considered tantamount to a criminal conviction, and did not call for the same standard of proof. Yet, perceiving that deportation was a drastic deprivation, the Court held it impermissible for an individual to be “banished from this country upon no higher degree of proof than applies in a negligence case.” 385 U.S. at 285, 87 S.Ct. at 487. The Court fashioned an intermediate standard of “clear, unequivocal, and convincing evidence.”11
*1166The Court’s approach in Woodby seems to be suitable for defective delinquency hearings. We should not tolerate the lax standard presently employed in committing inmates to potentially lifetime incarceration at Patuxent. Due process, I would hold, requires that the state shall establish by at least “clear and convincing evidence” that the individual is a defective delinquent. As Justice Harlan commented in his concurrence in Winship, supra, “a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” 397 U.S. at 370, 90 S.Ct. at 1076. The standard of proof is more than an empty semantic exercise; it reflects the value society places on individual liberty. I cannot agree that the Constitution tolerates an indeterminate confinement at Patuxent on no higher level of proof than that applied in a civil proceeding for money damages.
V. CONCLUSION
In light of the views set forth in Parts III and IV, I would reverse the decision of the District Court and require the state to hold new defective delinquency hearings for the petitioners under a proper standard of proof. In any factfinding and adjudicative process hereinafter conducted by the Patuxent staff, counsel should be allowed to participate in the manner described in Part III.
As already indicated, I think that the courts should regard Patuxent with a benign eye and that for the present a degree of flexibility is appropriate in dealing with Patuxent issues. I venture now to add a word of admonition to the officials of the Institution. In formulating and executing institutional policies the administrators should defer to traditional standards of fair procedure prized, even though not specifically commanded, by the courts. The officials’ aim should not be minimal compliance to escape judicial condemnation, but maximum compliance with the spirit and essence of the Bill of Rights protections. Present policies and practices should be thoroughly examined by them in light of these principles. Administered with this unstinting attitude, the Institution’s still experimental program will the more likely progress smoothly and meet with general satisfaction.
. See Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966), and Millard v. Cameron, 125 U.S.App.D.C. 383, 373 F.2d 468 (1966), where Judge Bazelon discussed the constitutional underpinnings of a “right to treatment” when an individual is involuntarily confined on “humane therapeutic” grounds. See also Comment, Civil Restraint, Mental Illness, and the Right to Treatment, 77 Yale L.J. 87 (1967).
. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), the Court emphasized the irrelevancy of arbitrary labels in dealing with procedures under Colorado’s Sex Offender Act. “These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause * * * and to the *1160Due Process Clause.” 386 U.S. at 608, 87 S.Ct. at 1211. The same thought has been stressed in Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968) (the state has an “inescapable duty to vouchsafe due process” in commitment proceedings for the mentally deficient) ; and in United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3rd Cir. 1966) (“due process cannot be satisfied by partial or niggardly procedural protections” in proceedings under Pennsylvania’s Sex Offender Act).
. In essence, the court is required to examine the Act to determine whether “less drastic means” might be employed to effect the objectives of the state. In the First Amendment area, which in our constitutional system is no less fundamental than individual liberty, the Supreme Court has allowed application of a least drastic means test where a compelling state interest is shown. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) ; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).’ A no more rigorous doctrine is called for in analyzing the adequacy of the procedural safeguards in commitments under this statutory scheme.
. According to the appellee’s brief, p. 23, after the decision of the District Court in this case, Avey was recommended by the Patuxent staff for commitment to Patux-ent as a defective delinquent. The record does not disclose whether he finally sub- • mitted to interrogation after the adverse decision below or whether the staff proceeded to recommend commitment without his cooperation. In at least one earlier ease, the Patuxent staff did recommend an inmate’s commitment, despite his consistent refusal to be interviewed. See Joint Record Extract, p. 602, Director of Patux-ent Institution v. Daniels, 243 Md. 16, 221 A.2d 397 (1966).
Avey’s incarceration at Patuxent has not run beyond the original sentence imposed for his underlying criminal conviction. We are thus not faced with a situation where confinement rests solely on a refusal to cooperate. The state would undoubtedly have to bear a heavy burden in justifying extended commitment where there has been no judicial hearing.
. The problem of the uncooperative defendant is frequently confronted in psychiatric examinations for competency and criminal ¡responsibility. Sanctions less severe than those imposed at Patuxent have been suggested to induce cooperation. See Judicial Conference of the District of Columbia, Report of the Committee on Problems Connected with Mental Examination of the Accused .in Criminal Cases, Before Trial 107-18 (1966) ; Note, Pre-Trial Mental Examination and Commitment : Some Procedural Problems in the District of Columbia, 51 Geo.L.J. 143, 152-56 (1962). I reserve opinion as to the constitutionality of confinement at Patuxent without a hearing where the inmate’s orig- • inal criminal sentence has expired.
. It needs to be emphasized that the prisoner is asked to speak of his past in order to gain an insight into his personality, his mind and his emotions, not to entangle him in any criminal prosecution. The District Court expressed a proper concern that disclosures of criminal acts by the inmate might lead to new charges. The court suggested that in such a case the exclusion at any subsequent criminal trial of the inmate’s admissions would suffice to protect his constitutional rights. I agree with the court’s concern, but would go further. Not only should such disclosures be inadmissible in any criminal proceeding, but they ought not become the predicate for further investigation leading to a prosecution. I would insist that the prisoner is entitled to complete immunity in respect to matters he is compelled to disclose.
There is an additional complication where the prisoner has pending an appeal from his conviction. In no event should any information divulged or evidence developed from information divulged be admissible against the prisoner if a new trial is awarded.
These matters need not be further pursued since they are not now before us.
. Petitioners’ reliance on the Supreme Court’s decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) is misplaced for at least two important reasons. The aim of the inquiry in the Gault hearings was not to ascertain the mental state of the juvenile, but whether he had committed the specific offense with which he stood charged. Here the inquiry is not intended primarily to prove past criminal conduct, but to assess the inmate’s emotional and mental state. Moreover, in Gault the Court discounted the state’s claim that the juvenile process “rehabilitated” its clients. By contrast, Patux-ent, according to the District Court’s finding, does engage in a bona fide treatment program.
. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the Supreme Court recognized this right of a defendant under the Sixth Amendment as fundamental and essential to a fair trial and therefore obligatory on the states under the Fourteenth Amendment.
. In Thornton v. Corcoran, 132 U.S.App.D.C. 232, 407 F.2d 695 (1969), the court discussed the implication of United States v. Wade, supra, in respect to counsel’s participation in staff conferences at Saint Elizabeths Hospital where a recommendation is reached as to a defendant’s competency and criminal responsibility. The court held that counsel should be included in the process, though the incomplete factual record in that case prevented the court from formulating precise rules. The court emphasized:
[T]here can be little doubt that his staff conference at Saint Elizabeths will represent an important confrontation [of the defendant] with experts likely to testify for the Government. Moreover, just as the Supreme Court argued in Wade that a witness once having identified a suspect in a lineup is unlikely to retract the identification at trial, our experience suggests that the representatives of Saint Elizabeths rarely contradict in their testimony at trial an opinion they have voiced at the staff conference.
407 F.2d at 699.
. Note, Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv.L.R. 1288, 1291 (1966) ; Comment, Due Process for All—Constitutional Standards for Involuntary Civil Commitment and Release, 34 U.Chi.L.R. 633, 654-59 (1967).
. The Court noted that that standard was no stranger to the law, and has been traditionally imposed in civil cases involving allegations of civil fraud, adultery, illegitimacy of a child born in wedlock, lost wills, oral contracts to make bequests, and the like. 385 U.S. at 285 fn. 18, 87 S.Ct. 483. See 9 Wigmore, Evidence § 2498 (3d ed. 1940).