(concurring).
I concur. The crucial question in this appeal is whether a defendant’s silence in the face of police suspicion can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is contradictory to his earlier silence. I believe the Supreme Court's holding in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), requires that the question be answered in the affirmative.
In his direct examination, Burt testified that the shooting of Owens was accidental. On cross-examination Burt was asked if he had told the police of the accidental shooting:
Q. And you didn’t tell — up to the time you got to the Camden jail — you didn’t tell anybody about Shorty, did you?
A. No, Sir.
Q. Did you tell anybody about Shorty after you got to the Camden jail?
A. No, Sir.
Q. When was the next time you saw Everline [Adams] ?
A. Early that next morning.
Q. And after you saw Everline early the next morning, did you tell anybody what happened to Shorty?
A. No, Sir.
By the time he saw Everline Adams, Burt was in custody and was suspected of the murder. He therefore had a constitutional right under the fifth amendment to remain silent. Miranda v, Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968); United States v. Mullings, 364 F.2d 173 (2d Cir. 1966).
In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that a defendant’s statements to police could be used to impeach his at-trial testimony even if they had been obtained in violation of Miranda. The Court said:
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.
401 U.S. at 225-226, 91 S.Ct. at 645-646. If the shooting was accidental as claimed by Burt, his silence both before he was a suspect and after was inconsistent with his at-trial testimony that the shooting was accidental. Such inconsistency, Harris holds, must be subject to the truth-seeking process of cross-examination'. I perceive no difference between impeachment by prior inconsistent statements made in the ab*238sence of a Miranda warning and impeachment by prior silence inconsistent with trial testimony which justifies not applying the Harris rationale in the present case. Accord, United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971).
The lesson of Miranda was that defendants should be protected from compulsion to incriminate themselves. Harris, although recognizing the need for such protection, limited the prophylactic rules devised by the Court to accomplish that result. In weighing the value to society of ascertaining the truth in the judicial process against the value to the individual of protection against self-incrimination, the Court determined that the former value must under some circumstances be given priority when the two values conflict directly. Burt’s silence after he became a suspect may also be interpreted as an exercise of his right not to incriminate himself. The silence, however, was inconsistent with his testimony at' trial that the shooting was accidental. Such inconsistency should be available to the prosecutor in his use of the traditional cross-examination process of the adversarial system. If inconsistencies cannot be demonstrated to a jury, the truth-seeking process is straitjacketed. The defendant, of course, is free to explain away seeming inconsistencies. The adversarial system requires that the jury, as triers of fact, make the final determination of which testimony and conduct to believe.
Appellee argues, and the district court suggested, that prosecutorial questioning about silence should be prohibited because of the principles enunciated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Griffin held that, because adverse prosecutorial comment or judicial instructions on the failure of a defendant to take the stand at trial makes costly this exercise of the right against self-incrimination, such statements made to a jury are unconstitutional. Appellee thus argues that allowing the prosecutor in the present case to ask defendant about his failure to tell the police of the alleged accidental shooting equally makes costly his exercise of the right against self-incrimination. I disagree. I believe appellee’s argument misconceives the thrust of Griffin.
Griffin does talk of the impermissibility of putting a price on exercise of a constitutional right. It says of comment on the refusal to testify:
It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.
380 U.S. at 614, 85 S.Ct. at 1232-1233. I do not see that Griffin applies to a situation where a defendant takes the stand and his credibility is tested by prior inconsistent conduct.
The cross-examination was not directed at appellee’s failure to speak in the face of self-incrimination. It was aimed at his failure to act in the face of alleged innocent conduct. Under the fifth amendment he was under no obligation to take the stand under any circumstances and, under Griffin, there could be no prosecutorial comment. Once, however, he took the stand, he subjected himself to the traditional truth-testing tools of our accusatory system, including an obligation to explain his unnatural behavior after a friend was mortally wounded by an allegedly accidental shooting.
Griffin’s disapproval of the imposition of a price on a defendant’s exercise of his right against self-incrimination must be understood in the context of the values protected by the fifth amendment. The Court, although not explicating those values in Griffin itself, did do so in denying retroactive application to its holding, in Tehan v. Shott, 382 U.S. 406, 414, 86 S.Ct. 459, 464, 15 L.Ed.2d 453 (1966):
It follows that the “purpose” of the Griffin rule is to be found in the whole complex of values that the privilege against self-incrimination itself represents, values described in the *239Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, case as reflecting “recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own .mouth.” [Emphasis added.]
Delineation of the values underlying the right against self-incrimination emphasizes the crucial significance of use of the word “compelled” in the fifth amendment: “nor shall be compelled in any criminal case to be a witness against himself.” Proscribed by the fifth amendment is not self-incrimination per se, but, rather, compelled self-incrimination. Maintenance of an accusatorial system requires not that individuals never incriminate themselves, but merely that they not be compelled to do so. Protection of the human personality and prevention of government intrusion similarly require only that self-incrimination not be compelled.
In Griffin, the Court expressed concern that prosecutorial or judicial comment on the failure of a defendant to testify would compel him to waive his right against self-incrimination. The Court suggested that what it said in Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 37 L.Ed. 650 (1893), about the federal statute, 18 U.S.C. § 3481, prohibiting the creation of any presumption from defendant’s failure to testify, reflects the spirit of the self-incrimination clause:
“ . . . [the clause] was framed with due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him.”
380 U.S. at 613, 85 S.Ct. at 1232. The Court was concerned not merely that adverse comments on the failure to testify placed a cost on exercise of the right against self-incrimination, but, moreover, that this cost was great enough to compel some defendants to take the stand and testify.
At the point where Burt chose to remain silent, thus exercising a right against self-incrimination, it is doubtful that any compulsion existed. Burt was never interrogated about the Owens murder by the police. No official ever suggested to him that he should speak. Compulsion would have existed only if defendant realized that he might be asked at trial to explain his silence should his trial testimony prove inconsistent with silence while in incarceration. The coercive effect of such a realization, although perhaps real, is minimal. I do not find it substantial enough to raise the defendant’s right against self-incrimination over society’s interest in using the methods of the adversarial process to discover truth. Griffin protected Burt from adverse comment if he refused to take the stand. Once he freely elected to testify, however, his testimony was uncoerced and society had a paramount stake in ascertaining the truth. In such a situation, the limitations of Griffin are inapplicable.1
*240I therefore concur in the reversal of the judgment of the district court. The ease should be remanded with instruction to the court to deny the petition for writ of habeas corpus.
Judge VAN DUSEN concurs in this opinion.. See language quoted from Harris v. New York at page 237 supra. The two sentences (401 U.S. at 225, 91 S.Ct. at 645) immediately preceding that language read as follows:
The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the *240speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.