dissenting:
I dissent. My misgivings concern the ruling permitting the systematic interrogation of witnesses on direct examination by counsel who knows they will assert the privilege against self-incrimination. This holding allows juries to draw prejudicial inferences from leading questions put to witnesses, denies parties the right to cross-examine, and is an invitation to sharp practice.
The assertion of the privilege by the five witnesses in the instant case was hardly unexpected, and the direct examination did not cease once it became clear that they would not testify in the conventional sense. Indeed, the City was altogether uninterested in posing questions that elicited testimonial answers. Direct examination of two of the five witnesses resulted in nothing but a statement that each was testifying under subpoena, followed by the assertion of the privilege in response to seventeen and thirteen questions, respectively. The examination of the other three did not differ in substance.
The majority’s suggestion that these witnesses might have “come clean” on the stand is a transparent make-weight. Not only did the questioning persist well after the witnesses’ intentions not to testify were apparent to all, but a voir dire examination outside the presence of the jury could easily have established those intentions.
I
Viewing the issue as an open question— albeit the majority’s view is not only unprecedented but also contrary to every precedent, including decisions of this court, see II infra — the prejudicial impact of allowing juries to draw inferences against parties from assertions of the privilege by witnesses clearly outweighs any probative value. Fed.R.Evid. 403.
First, the supposed probative value is derived entirely from the questions put by counsel. Consider the following examination of Mr. Gargiulo, a discharged employee of Brink’s:
Q: Did you carry a brown satchel while you were working on the parking meter contract?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United. States.
Q: And it’s a fact, is it not, that you used that satchel to place monies from the coin cannisters into the satchel to take for your own personal use during the period of the parking meter contract?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
Q: On March 5, 1980, do you recall throwing a handful of slugs into a trash can in a Blimpie’s near 42 Franklin Street?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
* * * * * *
Q: Mr. Gargiulo, on March 28, 1980, did you accompany Brink’s collector Trevor Fairweather to his home on 89th Street in Manhattan and bring a brown satchel containing parking *716meter revenues up to his apartment with him?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
Obviously, the posing of fact-specific questions is designed to suggest to the jury that but for the privilege the answer in each case would have been “yes.” However, since the privilege may be invoked as to any answer “which would furnish a link in the chain of evidence needed to prosecute the claimant,” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951), and “[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... or an explanation of why it cannot be answered might be dangerous,” id. at 486-87, 71 S.Ct. at 818-19, assertion of the privilege in response to specific questions such as these quoted above is permissible whether the answer is “yes” or “absolutely not.” Nevertheless, the self-evident purpose of such questioning is to suggest that the answer would be “yes.” Otherwise, the questions would never be asked. This practice inevitably invites jurors to give evidentiary weight to questions rather than answers. Moreover, it leaves the examiner free, once having determined that the privilege will be invoked, to pose those questions which are most damaging to the adversary, safe from any contradiction by the witness no matter what the actual facts.1
Second, the adversary is effectively denied the right of cross-examination since the witness cannot even be made to explain why the privilege has been invoked, much less to contradict the intended inference. The best a cross-examiner can do to combat the interrogation quoted above, I suppose, is to provoke something like the following mindless exchange:
Q: You did not carry a brown satchel while you were working on the parking meter contract, did you?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
Q: And it is not a fact, is it, that you used a satchel to carry monies from the coin cannisters for your own personal use during the period of the parking meter contract, is it?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
Q: You do not recall, do you, throwing a handful of slugs into a trash can in a Blimpie’s near 42 Franklin Street on March 5, 1980?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
* * * * * *
Q: Mr. Gargiulo, you did not accompany Brink’s collector Trevor Fairweather to his home on 89th Street in Manhattan and bring a brown satchel containing parking meter revenues up to his apartment with him, on March 28, 1980, did you?
A: I respectfully must decline to answer that question pursuant to my rights under the Fifth Amendment of the Constitution of the United States.
The fundamental weakness of the “testimony” permitted by the majority is demonstrated by comparing it with analogous kinds of evidence which are clearly inadmissible under the Federal Rules. For example, had Gargiulo uttered the content of the direct examination to a friend prior to trial, his statements would have been inadmissible against Brink’s for the truth of the matter asserted even if Gargiulo took the stand. Fed.R.Evid. 801(d)(1)(A). Yet evi*717dence of such statements is more probative and subject to testing on cross-examination than the non-answers given in the instant case. There is a certain irony in today’s decision since Rule 801(d) as originally proposed would have admitted such statements for their truth but was amended by Congress to exclude them at the urging of members of this Court. See H.Rep. No. 650, 93d Cong., 2d Sess. 13 (1973), reprinted in 1974 U.S.Code Cong. & Ad.News 7075, 7086-87, citing United States v. Cunningham, 446 F.2d 194 (2d Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 302, 30 L.Ed.2d 266 (1971).
Another analogy to the practice condoned by the majority is the hearsay exception for declarations against interest. Fed.R.Evid. 804(b)(3). Under that rule the declarant must make a “statement” with content sufficiently opposed to certain specific kinds of interests of the declarant that “a reasonable man in his position would not have made ... unless he believed it to be true.” Id. I strongly believe, indeed, I am utterly confident, that a statement by a declarant, “I would rather not get into that,” would not be admissible under Rule 804(b)(3), although it is the essential equivalent of what happened in the instant case.
There can be little doubt that the tactic in question had a devastating effect on Brink’s in this case.2 First, it was relied upon heavily by the City to show Brink’s liability. In his summation, counsel for the City repeatedly characterized use of the privilege as testimony, read to the jury extended passages of the transcript where the privilege was invoked in answer to fact-specific questions, and sarcastically referred to use of the privilege as the “explanation” given by the five witnesses of their conduct. In a telling portion of the summation, the attorney read a question put to such a witness, paused and noted for the jury’s benefit, “Pretty specific question,” before reading the answer, “I would like to assert my privilege under the Fifth Amendment on the grounds that it might incriminate me.” Second, the effect of such questioning blunted one of Brink’s strongest points, namely that city employees must have connived in the thefts and that the City’s failure to supervise its employees was a cause of the losses suffered. Finally, the prejudicial impact is evident in the jury’s verdict, which found the City blameless, awarded substantial compensatory damages against Brink’s, and found punitive damages in an amount so shocking that the district court reduced it by 70%.
II
So far as I can determine, the holding of the majority opinion establishes a rule utterly without precedent in American law. See Annot. 24 A.L.R.2d 895 (1952). It is directly inconsistent with our decisions in United States v. Maloney, 262 F.2d 535 (2d Cir.1959) and United States v. Tomaiolo, 249 F.2d 683 (2d Cir.1957). The majority’s discussion of these cases borders on the flip and crosses over into the beside-the-point. In Maloney, which discusses favorably our decision in United States v. 5 Cases, More or Less, Containing “Figlia Mia Brand”, 179 F.2d 519 (2d Cir.), cert. denied, 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372 (1950), a civil proceeding, the pertinent passage from Judge Learned Hand’s opinion reads:
[I]n [the prosecution’s] summation it referred to [the witness’] refusal in a context that could only have been understood as arguing that, if he had not refused, his answer would have been in the affirmative. Such refusals have been uniformly held not to be a permissible basis for inferring what would have been the answer, although logically they are very persuasive. How to deal with them is another matter, not easy to decide; but it is clear, not only that the presumed answer has not the sanction of an oath, *718but — what is even more important — that the accused cannot cross-examine. If they once do get before the jury, there arises, as we have said, a strong probability that they will be taken as evidentiary.
262 F.2d at 587. This analysis, I submit, is in no way limited to criminal proceedings. Instead of responding with a counter analysis, the majority merely quotes Judge Hand as saying, “the interest of the accused should prevail over that of the prosecution,” a statement which does not support the majority’s position and is lifted from the discussion of a wholly different point, namely whether in the particular case the jury might draw an adverse inference from the failure of the prosecution to call the witness. Id.
As for Tomaiolo, the majority limits its discussion to the fact that the witness’s assertion of the privilege occurred before a grand jury, a point having absolutely nothing to do with whether that assertion of the privilege may be offered in a civil proceeding. Moreover, the pertinent conclusion in Tomaiolo was
It thus seems to us that “in the particular circumstances of this case, the cross-examination should have been excluded because the probative value on the issue of * * * credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury.” Grunewald v. United States, 353 U.S. at page 420 [77 S.Ct. at page 982].
249 F.2d at 692. Again, the analysis is that the probative value of such interrogation is outweighed by its prejudicial impact, an analysis as applicable to civil as to criminal proceedings. Fed.R.Evid. 403.
The majority correctly states that Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), endorsed “the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to a civil action when they refuse to testify in response to probative evidence offered against them.” Id. at 318, 96 S.Ct. at 1558. However, the issue is not whether adverse inferences may be drawn against a party who asserts the fifth amendment in a civil action, but whether adverse inferences may be drawn against a party because a witness (whether or not another party) asserts the fifth amendment.
Whether because of imperatives of the adversary system or intuitive judgments about fairness, acts or statements of parties, when offered by their adversaries, are not subjected to tests uniformly imposed upon non-party witnesses. For example, the rule admitting extrajudicial statements by parties precludes not only objections that they are hearsay, Fed.R.Evid. 801(d)(2); but also objections to form, Bill v. Farm Bureau Life Ins. Co., 254 Iowa 1215, 119 N.W.2d 768 (1963) (lateral motion of head in answer to question “Is there any doubt in your mind that your son committed suicide?”), Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913 (1963) (statement that railway crossing is particularly bad); objections based on a lack of personal knowledge, Bill, supra, Scherffius v. Orr, 442 S.W.2d 120, 124-25 (Mo.App.1969) (ownership of calf which caused highway accident); and objections that extrajudicial statements were wholly self-serving when made, Frank R. Jelleff, Inc. v. Braden, 233 F.2d 671 (D.C.Cir.1956) (admission of a complaint in an indemnity action to prove liability in primary tort action). Baxter simply embroiders on these well established legal fabrics and has no application to the City’s use of resort to the privilege by the witnesses against Brink’s.3
. Whether there is other evidence in the case to support the factual premises of the questions is irrelevant to my point since that evidence must stand on its own and is neither strengthened nor weakened by the kind of examination described above.
. Because the witnesses were third party defendants vis-a-vis Brink’s, the majority argues that the inferences drawn from resort to the privilege were “presumably” as beneficial to Brink’s as to the City. Since the City called the witnesses and read back their "testimony” in summation while Brink’s strenuously objected, counsel seem not to agree. The jury also failed to notice the benefits to Brink’s when it returned a $6 million verdict against it and found the individuals severally liable for $5,000 each.
. Heidt, The Conjurer’s Circle: The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062 (1982), argues generally that in civil cases in which corporations are defendants, an employee’s assertion of the fifth amendment should be treated as a vicarious statement of the corporate employer. Id. at 1119-22. The comfort found by the majority in Professor Heidt’s discussion of the admittance of assertions of the privilege by former employees is derived only by omitting his explanation of why such admittance is not “necessarily” barred. The full text of the pertinent paragraph reads:
That the invoker is no longer the defendant’s employee at the time of his invokings need not necessarily bar admitting the invokings as a vicarious admission. The fact of present employment serves primarily to reduce the chance that the employee will falsely claim to *719have engaged in criminal conduct for which the defendant employer is liable. Any factors suggesting that a former employee retains some loyalty to his former employer— such as the fact that the employer is paying for his attorney — would serve the same purpose.
Id. at 1120 n. 214. In the instant case, four of the former employees had been discharged by Brink’s after their indictment and no showing of residual loyalty was made. The one continuing employee was made a third party defendant by Brink’s, but we have previously held that where an employer and employee stand in “conflicting litigating positions,” statements of the employee may not be introduced as admissions against the employer. SEC v. Geon Industries, Inc., 531 F.2d 39, 43 n. 3 (2d Cir.1976). Moreover, Professor Heidt’s suggestion that assertions of the privilege by an employee are admissible against the employer is well taken only where the employer in fact can control the employee. Where collective agreements or other legal barriers to discharge exist, the logic of his position is undermined.