The general rule that a witness must affirmatively claim the privilege against compulsory self-incrimination must in my *192view admit of an exception in the case of a grand jury witness whom the prosecutor interrogates with the express purpose of getting evidence upon which to base a criminal charge against him. In such circumstances, even warnings, before interrogation, of his right to silence do not suffice. The privilege is emptied of substance unless the witness is further advised by the prosecutor that he is a potential defendant. Only if the witness then nevertheless intentionally and intelligently waives his right to be free from compulsory self-incrimination and submits to further interrogation should use of his grand jury testimony against him be sanctioned. As I stated in United States v. Mandujano, 425 U. S. 564, 598-600 (1976) (concurring in judgment):
“I would hold that, in the absence of an intentional and intelligent waiver by the individual of his known right to be free from compulsory self-incrimination, the Government may not call before a grand jury one whom it has probable cause' — as measured by an objective standard— to suspect of committing a crime, and by use of judicial compulsion compel him to testify with regard to that crime. In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government for use at trial. Such a waiver could readily be demonstrated by proof that the individual was warned prior to questioning that he is currently subject to possible criminal prosecution for the commission of a stated crime . . . .”
In this case, although respondent Washington was advised of his rights to silence and to talk to a lawyer before he appeared before the grand jury, he was “only told that he was needed as a witness in prosecuting the two who were occupants of the van at the time of its impoundment.” 328 A. 2d 98, 100 (1974). He was never told that he was in danger of being indicted himself, even though “at the time of his grand jury appearance respondent was a potential defendant whose *193indictment was considered likely by the prosecution.” Ante, at 186 n. 4.
The ancient privilege of a witness against being compelled to incriminate himself is precious to free men as a shield against high-handed and arrogant inquisitorial practices. It has survived centuries of controversies, periodically kindled by popular impatience that its protection sometimes allows the guilty to escape punishment. But it has endured as a wise and necessary protection of the individual against arbitrary power, and the price of occasional failures of justice is paid in the larger interest of general personal security.
I would hold that a failure to warn the witness that he is a potential defendant is fatal to an indictment of him when it is made unmistakably to appear, as here, that the grand jury inquiry became an investigation directed against the witness and was pursued with the purpose of compelling him to give self-incriminating testimony upon which to indict him. I would, further hold that without such prior warning and the witness’ subsequent voluntary waiver of his privilege, there is such gross encroachment upon the witness’ privilege as to render worthless the values protected by it unless the self-incriminating testimony is unavailable to the Government for use at any trial brought pursuant to even a valid indictment.
It should be remarked that, of course, today’s decision applies only to application of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution.* The holding does not affect the authority of state courts to construe counterpart provisions of state constitutions — even identically phrased provisions — “to give the individual greater protection than is provided” by the *194federal provision. State v. Johnson, 68 N. J. 349, 353, 346 A. 2d 66, 67-68 (1975). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
A number of state courts have recognized that a defendant or potential defendant called before a grand jury is privileged against the State’s using his self-incriminating testimony to procure an indictment or using it to introduce against him at trial, even in the absence of an affirmative claim of his privilege against self-incrimination. See, e. g., People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571 (1961); State v. Fary, 19 N. J. 431, 437-438, 117 A. 2d 499, 503 (1955); Taylor v. Commonwealth, 274 Ky. 51, 118 S. W. 2d 140 (1938); State v. Corteau, 198 Minn. 433, 270 N. W. 144 (1936); Culbreath v. State, 22 Ala. App. 143, 113 So. 465 (1927). See additional cases in Annot., Privilege Against Self-incrimination as to Testimony before Grand Jury, 38 A. L. R. 2d 225, 290-294 (1954). One court has specifically held that interrogating a potential defendant “under [the] guise of examining him as to the guilt of someone else” is a violation of the defendant’s privilege against self-incrimination. People v. Cochran, 313 Ill. 508, 526, 145 N. E. 207, 214 (1924). See also Newman, The Suspect and the Grand Jury: A Need for Constitutional Protection, 11 U. Rich. L. Rev. 1 (1976); Comment, The Grand Jury Witness’ Privilege Against Self-Incrimination, 62 Nw. U. L. Rev. 207, 223 (1967); Meshbesher, Right to Counsel before Grand Jury, 41 F. R. D. 189, 191 (1966). The rationale of these decisions — which I would find applicable to the case now before us — is that where the grand jury investigation is in fact a proceeding against the witness, or even if begun as a general investigation it becomes a proceeding against the witness, the encroachment upon the witness’ privilege requires that a court deny to the prosescution the use of the witness’ self-incriminating testimony.
Of course, it is still open to the District of Columbia Court of Appeals, under its supervisory powers, on remand to order and enforce compliance with what it considers proper procedures before the grand jury, Ristaino v. Ross, 424 U. S. 589, 597 n. 9 (1976); United States v. Jacobs, 547 F. 2d 772 (CA2 1976), cert. pending, No. 76-1193.