(dissenting).
The following was originally prepared as the concluding portion of the opinion of the court. It was not agreed to by the other members of the panel for reasons stated in the opinion of Judge Duniway. It therefore states a dissenting view.
II.B. The Lineup
All but three of the fourteen witnesses who identified appellant in the courtroom testified on cross-examination that they had also identified him at a pretrial lineup. Appellant sought to suppress their courtroom identification on the ground that the lineup violated appellant’s Fifth Amendment right against compulsory self-incrimination and his Sixth Amendment right to counsel.
The circumstances surrounding the lineup, so far as they appear in this record, are as follows. The lineup was held on March 26,1964, subsequent to the return of both indictments, and after appellant had retained counsel. Appellant objected to participating and demanded the aid of his counsel. Appellant’s protests were ignored and he was required to participate in his counsel’s absence.1
Approximately thirteen men, including appellant, appeared on stage. The prisoners were identified by number. They were required to approach the center of the stage individually, turn, try on various articles of clothing, and answer questions, including whether they owned an automobile, where they were arrested, and whether when arrested they were armed. They were required to say certain phrases used during the robberies- — ■ “Freeze, this is a stick up”; “This is a holdup”; “This is a heist”; “Don’t anyone move”; “Empty your cash drawer”— to shout these phrases and repeat them in a quiet voice, while standing still and while walking, both normally and at a rapid pace.
Witnesses from all four robberies were assembled in the audience. After each prisoner went through the general routine, the FBI agent in charge asked if the witnesses wished to see any of the prisoners again. The witnesses were instructed to call out the numbers of any prisoner they recognized, and told that if they had doubts, this was the time to see the prisoners a second time, and to ask them to repeat phrases used in their respective robberies. The witnesses called out the numbers of two or three of the prisoners, including appellant, many of them calling out appellant’s number. The prisoners thus selected were asked by various witnesses to repeat given phrases, walk in a particular way, or try on particular articles of clothing. Appellant was asked to speak loudly, to walk rapidly and slowly while repeating certain phrases, to speak more loudly (which one witness testified appellant refused to do), and to put on a hat (which two of the witnesses testified he at first refused to do). The witnesses talked among themselves as the lineup progressed.
Fifth Amendment. Requiring a prisoner to expose himself to view in a lineup does not, per se, violate the privilege against self-incrimination.2 But as *952Chief Judge Tuttle recently pointed out in Wade v. United States, 358 F.2d 557 (5th Cir. 1966), when Justice Holmes formulated the distinction between compelled communication (which is prohibited) and compelled exposure of the body (which is not), he expressly reserved the question of “how far a court would go in compelling a man to exhibit himself,” in view of the Fifth Amendment stricture against self-incrimination, Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).3 Eminent authority suggests that compelling the accused to produce a voice exemplar may in itself constitute prohibited self-incrimination. Maguire, Evidence of Guilt 31 (1959); Weintraub, 10 Vand.L.Rev. 485, 504-05 (1957) 4 And it has been recently held that the due process clause of the Fourteenth Amendment precludes a state from relying upon a pretrial voice identification “secured by a process in which the search for truth is made secondary to the quest for a conviction.” Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966). See also United States ex rel. Stovall v. Denno, 355 F.2d 731, 738 (2d Cir. 1966). But the question of possible Fifth Amendment violation need not be pursued, for in any event, in the writer’s view, appellant was denied his Sixth Amendment right to counsel.
Sixth Amendment. Since appellant was indicted prior to the lineup, the prosecution against him was unquestionably underway. The rationale of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), required that appellant receive the aid of counsel in all confrontations with the prosecutor which might critically affect the prosecution’s outcome, including confrontations which occurred outside the courtroom. Escobedo v. State of Illinois, supra; Massiah *953v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).5
What takes place during the lineup might lay the foundation for conviction as surely as responses to extra-judicial interrogation. It might, just as clearly, reduce to mere form the right to have guilt or innocence determined at a public trial before a judge in an orderly courtroom, protected by the procedural safeguards of the law, and effectively assisted by counsel. See Massiah v. United States, 377 U.S. 201, 204, 84 S.Ct. 1199 (1963).6 The results of the lineup, like those of an interrogation, might well “make the trial no more than an appeal” from the prior uncounseled confrontation between appellant and the prosecution. Escobedo v. State of Illinois, 378 U.S. at 487, 84 S.Ct. 1758, 12 L.Ed.2d 977. Since the lineup might critically affect the outcome of the trial, appellant was entitled to counsel’s aid. Wade v. United States, 358 F.2d 557 (5th Cir. 1966).7
But it is said that counsel could be of no assistance to an accused at a lineup; and that to require the presence of counsel would be an empty formality. I cannot agree, either generally or with respect to this appellant.
An accused needs counsel’s advice in deciding whether to participate’ in the lineup at all, and, if he does participate, whether to condition his participation upon the prosecutor’s agreement to arrangements which would assure a fairer proceeding and a more reliable result— for example, by affording defense counsel a prior opportunity to question the identification witnesses, by selecting participants in the lineup who are not grossly dissimilar from the accused in physical appearance, and by fairly conducting the lineup itself. An illuminating discussion of some of the factors which counsel would be required to weigh in advising the accused in this connection appears in a recent paper by David Napley, Solicitor of the Supreme Court of Judicature of England and Wales, where the right of the accused to assistance of counsel at “identification parades” is recognized.8
*954If the accused decides to participate, counsel’s mere presence during the lineup proceeding will afford protection against abuses which a secret lineup could only encourage.9 Moreover, counsel could advise the accused whether to accede to particular demands for verbal responses and physical movements. He could appeal to the prosecutor to eliminate unfair procedures at the moment of their appearance, and, if need be, could seek the aid of a protective court order.10 In short, the presence of counsel at the lineup would serve to preserve the benefits which we attribute to our accusatorial, adversary system of justice.11
*955Turning to the present lineup, it is obvious even on this sparse record that counsel might have done much to guide appellant’s conduct, and to assure a fairer proceeding. Appellant’s need for assistance in deciding whether to condition his participation or refuse to participate at all was especially acute in view of the prior exposure to appellant’s photographs of all the witnesses — several had examined pictures of appellant repeatedly over a period of months.12 Similarly, the questions asked (particularly whether appellant was armed when arrested), and the nature of the demonstrations which appellant was required to perform raised problems as to which counsel could have been helpful. Finally, the practice of assembling all of the witnesses in the same auditorium, enabling them to communicate with each other freely and to inform each other of their impressions both directly and by calling out the number of the prisoner they recognized, was calculated to produce a consensus at the expense of individual judgment, and might well have been avoided, either at the request of counsel or in response to a protective order. Wade v. United States, 358 F.2d 557 (5th Cir. 1966). See United States ex rel. Stovall v. Denno, supra, 355 F.2d at 744 (Friendly, J., dissenting).
The Supreme Court of California has held that appellant was not entitled to counsel at the lineup, essentially on the grounds that his privilege against self-incrimination was not impaired, that he was required to do no more at a lineup than he might have been required to do at trial, and that counsel could have determined whether the lineup was fairly conducted by the use of pretrial discovery of prosecution witnesses and cross-examination at trial. People v. Gilbert, 47 Cal.Rptr. 909, 408 P.2d 365, 376-377 (1966).
But the right to counsel is not limited to situations in which the privilege against self-incrimination is at stake. Miranda v. State of Arizona, 384 U.S. 436, 465 n. 35, 86 S.Ct. 1602 (1966). Assistance of counsel is required for purposes other than that of advising the accused of his right to remain silent. Escobedo had been advised of that right (378 U.S. at 499, 84 S.Ct. 1758 (White, J., dissenting)), and the matters held to require the advice of counsel in Hamilton v. State of Alabama, 368 U.S. 52, 53-54, 82 S.Ct. 157 (1961), did not relate to the privilege against self-incrimination. See United States ex rel. Stovall v. Denno, supra, 355 F.2d at 743 (Friendly, J., dissenting). But see id. at 740 n. 1 (Lumbard, C. J., concurring.) As noted, the rationale of the Supreme Court decisions in this area is that preservation of the substance of the right to public trial with the assistance of eoun*956sel requires that the right to counsel be extended to all confrontations between the state and the accused during the course of the prosecution which may critically affect the outcome.
Nor is it enough to say that an accused is required to do no more at lineup than he could be compelled to do at trial. At trial he has a lawyer. At counsel’s request a judge might order the segregation of identification witnesses, and take other appropriate steps to enhance the fairness and reliability of the identification testimony.
Finally, even if California’s pretrial criminal discovery system were available in federal courts, it could not be realistically contended that subsequent interrogation of the witnesses to a secret lineup would serve as a reasonable substitute for counsel’s presence and participation in the proceeding itself. Even if what actually occurred could be accurately determined by these means, nothing could then be done to change it.
Since the lineup identifications of appellant were the product of illegal activity, they were not admissible in evidence, for “testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies.” Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). However, the government did not offer proof of the lineup identifications. Testimony of the witnesses on direct examination was limited to identification of appellant as he sat in the courtroom.13 Solely for the reason that the lineup identifications were not part of the government’s case in chief, the district court denied appellant’s motion to suppress.14
However, the fact that the government did not rely directly upon the lineup identifications was not a sufficient ground for denying appellant’s motion. In order to make the deterrent effect of the exclusionary rule fully effective, it is extended “as well to the indirect as the direct products” of unconstitutional police activity. Wong Sun v. United States, supra, 371 U.S. at 484, 83 S.Ct. 407.
Although deterring violation of constitutional rights is a vital objective, it is also important that evidence relevant to' the issue of guilt or innocence be freely received. In an effort to accommodate these conflicting interests the Supreme Court has limited the exclusionary rule. Evidence traceable to an unconstitutional search may nonetheless be received if the government shows it was or would have been obtained from an “independent source” (Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) (dictum)), or if the connection between the search and the evidence is “so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939) (dictum); Wong Sun v. United States, 371 U.S. 471, 485-487, 83 S.Ct. 407 (1963). See Maguire, 55 J.Crim.L. 307 (1964); Comment, 79 Harv.L.Rev. 938, 1024 (1966). Thus the question in the present case is whether the courtroom identifications were “ ‘come at by exploitation’ of the unlawful lineup ‘or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, supra, 371 U.S. at 488, 83 S.Ct. at 417 (quoting from Maguire, Evidence of Guilt 221).
There has been some suggestion that a courtroom identification can never be freed of the taint of prior illegal observation of the accused. Wade v. Unit*957ed States, 358 F.2d 557 (5th Cir. 1966); United States ex rel. Stovall v. Denno, 355 F.2d 731, 742 (2d Cir. 1966) (Lumbard, C. J., concurring); Broeder, 42 Neb.L.Rev. 483, 534-35 (1963).15 On the other hand, it has sometimes been assumed, from dictum in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939), that the connection between the two is always to be treated as so attenuated as to render the courtroom identification admissible. United States ex rel. Stovall v. Denno, supra, 355 F.2d at 745 (Friendly, J., dissenting); Williams v. United States, 120 U.S.App.D.C. 244, 345 F.2d 733, 736 (1965) (Burger, J., concurring). Cf. Edwards v. United States, 117 U.S.App.D.C. 383, 330 F.2d 849, 851 (1964); Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, 727 (D.C.Cir. 1961); Monroe v. United States, 98 U.S. App.D.C. 228, 234 F.2d 49, 56 (1956). See also Bernstein, 37 Ill.L.Rev. 99, 105 (1942).
Neither extreme accommodates the interests involved. If courtroom identifications are invariably admitted no matter how clearly it may appear that they rest wholly or substantially upon violation of constitutional right, the interest in deterrence is wholly ignored. On the other hand, if courtroom identifications by witnesses to illegal lineups are invariably excluded no matter how clearly it may appear that they rested upon the witnesses’- observations at the scene of the crime and were not influenced by viewing the accused at the lineup, the interest in receiving relevant evidence is sacrificed with too little cause.
As in other situations in which evidence is challenged as tainted by an illegal activity, a reasonable accommodation between the conflicting interests requires the trial judge to determine whether in light of all the circumstances a substantial relationship exists between the illegal activity and the challenged testimony. See generally Maguire, 55 J.Crim.L. 307 (1964). If a substantial relationship is found, then the government may have benefited from its wrongful conduct, and the interest in deterrence requires exclusion of the courtroom identification. If the relationship is remote or tenuous, the interest in furthering the search for truth must prevail. Thus in Jacobson v. United States, 356 F.2d 685 (8th Cir. 1966), when objection was made to testimony of the witness Peterson, identifying the accused, on the ground that the courtroom identification was based upon observation of the accused by Peterson during a period of illegal detention, “A hearing was held in the absence of the jury, at which Peterson testified positively that he was able to identify appellant as the same person he saw in Williams on December 18, 1963 without regard to having seen appellant in the jail on November 10, 1964. The court then overruled the motion to suppress, but excluded the officer’s testimony by excluding any reference to the so-called ‘jailhouse identification.’” 356 F.2d at 687.16
*958The burden rested upon the appellant to establish that the lineup was illegal and that there was a reasonable possibility that attendance of the witnesses at the lineup tainted their courtroom identifications. The burden would then pass to the government to convince the trial court that the evidence was free of taint. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1940). Cf. Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, n. 18, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Collins v. Beto, 348 F.2d 823, 827 (5th Cir. 1965); United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964); United States v. Paroutian, 299 F.2d 486, 489 (2d Cir. 1962); United States v. Coplon, 185 F.2d 629, 636 (2d Cir. 1950), cert. denied 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952); Goldstein v. United States, 120 F.2d 485, 488 (2d Cir. 1941), aff’d on other ground, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942); Maguire, 55 J.Crim.L. 307, 309 (1964).
Appellant discharged his burden of demonstrating the illegality of the lineup. And the details of the lineup procedure which were disclosed, plus testimony of several of the witnesses that they did not identify appellant until the procedure was well advanced, may have been enough to establish the reasonable possibility that the courtroom identifications were in part the product of the lineup. On the other hand, the testimony of some of the witnesses indicated that their courtroom identifications reflected what they saw at the time of the particular robbery, unaffected by the intervening illegal lineup. But the trial judge did not decide the issue. Instead, he denied appellant’s request for a hearing at which the facts necessary to a decision of the issue could have been developed. This was error.
Ill
Appellant contends that admissions which he made to an FBI agent should not have been received in evidence because they were improperly induced.
After appellant had been indicted and while he was in custody, he was questioned on two occasions by an FBI agent. The admissions in question were made at the second interview.
The FBI agent opened the first interview, held on March 17, 1964, by advising appellant of his right to consult with counsel, and to refuse to give a statement. In reply, appellant informed the FBI agent that he had retained an attorney and that before making a statement he wished to have his attorney’s advice. The FBI agent persevered, and the interview continued for nearly three hours. In the course of the interview the agent inquired about appellant’s family, telling appellant that he was doing so for the purpose of determining whether they had harbored appellant while he was a fugitive from arrest [in violation of 18 U.S.C.A. § 1071], or had received money which appellant had stolen from a bank [in violation of 18 U.S.C.A. § 2113(c)]. The agent recalled that appellant replied, “I want to leave my family out of this. I have caused them enough trouble already.” The agent responded, “Apparently you have.” Appellant inquired, “What do you mean by that?” and the agent said, “Well, you know we talked to your mother.” The agent then went on to tell appellant that his mother was ill, probably with cancer; that his brother’s children were being abused by their schoolmates as a result of.publicity concerning appellant; and that appellant’s mother, brother, and sister-in-law were under investigation to *959■determine whether they had violated the statutes referred to.
There was a discussion between appellant and the FBI agent regarding the possibility of a “deal” by which appellant would confess to the bank robberies in return for assurances that no further action would be taken against his family. The FBI agent stopped the questioning, left the room, telephoned an assistant United States Attorney, told him of the discussion, and asked whether the interview should continue in the absence of appellant’s counsel. The FBI agent received no direct answer to this question, but was told to advise appellant that as of that time no process was outstanding against appellant’s mother, brother, or sister-in-law. The FBI agent returned to the interview room and so advised appellant. Appellant told the FBI agent that he would talk with his attorney and contact the FBI agent later.
Near the close of this interview appellant made an admission with respect to one of the robberies, but this admission was not offered as evidence at the trial.
Appellant testified that he spoke to his attorney on March 18th or 19th, but the attorney declined to advise him on the ground that he represented appellant only as to a pending state charge, and not as to the federal charges. Having heard nothing further from his family, appellant decided to call the FBI agent.
On March 20th appellant telephoned the FBI agent and arranged to see him. The FBI agent again advised appellant of his rights. Appellant informed the FBI agent that appellant’s attorney had told him to go ahead. The FBI agent read the list of robberies with which appellant was charged, and appellant admitted the four robberies involved here.
Appellant testified that the FBI agent stated, on both the 17th and the 20th, that although the agent could give no guarantee, he thought that if the robberies were cleared up there would be no reason to continue the investigation of appellant’s family. Although readily admitting the discussion of appellant’s family and of the possibility of a “deal” on the 17th, the FBI agent denied that either subject was mentioned on the 20th, or that a “deal” was in fact ever made.
The government offered the oral confession of the 20th in evidence. Appellant objected that it was not voluntarily made, but was induced by implied threats and promises with respect to the investigation and prosecution of his family. The trial court refused to determine whether the admission made on the 17th was voluntary. It held that any improper influence present on the 17th had been dissipated by the 20th because of the lapse of time, and the fact that appellant had consulted with counsel. The court credited the FBI agent’s testimony that there was no discussion of a “deal” or of appellant’s family on the latter date, and held that the oral confession made on that date was therefore voluntary.
The trial court erred in refusing to consider whether the interrogation of the 17th was so tainted by implied threats or inducements as to render inadmissible any confessions made on that date.17 Had the trial court addressed itself to the problem, it could have concluded that what occurred, on the 17th rendered ap*960pellant’s decision to incriminate himself something less than the voluntary choice of a free and unrestrained will. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347-348, 83 S.Ct. 448, 9 L.Ed.2d 357 (1962). A threat or promise concerning one close to the accused in affection is often an element in a determination of inadmissibility [see, e. g., Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Crawford v. United States, 219 F.2d 207, 210 n. 5 and text (5th Cir. 1955); cf. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed. 2d 760 (1961)] — although this factor standing alone may not invariably compel that conclusion. See, e. g., Stein v. People of State of New York, 346 U.S. 156, 186, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953); United States v. Gordon, 303 F.2d 441 (5th Cir. 1962); see also Cortez v. United States, 337 F.2d 699-701-702 (9th Cir. 1964), and cases cited therein. Cases are collected in People of State of California v. Trout, 54 Cal.2d 576, 6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418.
Had the trial court examined the events of the 17th, and had it concluded that the interrogation was sufficiently tainted by implied threats or inducements to render appellant’s self-incriminating statements inadmissible, a presumption would have arisen that those influences continued to the interview which followed on the 20th. The prosecution would then have been required to demonstrate that their force was dissipated prior to the second interview. If the government failed to discharge this burden, the oral confessions of the 20th would have been inadmissible. As Judge Tuttle said in Williams v. United States, 328 F.2d 669, 671 (5th Cir. 1964), “where a confession has been obtained by means of inducement, the burden is on the prosecution to show that the operating force of the inducement has been brought to an end before any subsequent confession may be received.” See also United States v. Gorman, 355 F.2d 151, 157 (2d Cir. 1965); Collins v. Beto, 348 F.2d 823, 828 (5th Cir. 1965); Killough v. United States, 1140 U.S.App.D.C. 305, 315 F.2d 241, 244, 245 (D.C.Cir. 1962), id. at 249 (Wright, J., concurring),18 cf. Miranda v. State of Arizona, 384 U.S. 436, 496-497, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The showing made here was insufficient. The short lapse of three days would have little if any tendency to neutralize a threat of prosecution, or promise of immunity, if either occurred. And the fact that during this interval appellant consulted his counsel would have no greater effect. This was not a case in which the claim of involuntariness rested upon the accused’s isolation or lack of knowledge of his rights, or upon lengthy uninterrupted interrogation, or fear of immediate physical violence, or the like. Access to counsel might well dissipate improper influences of this sort. However, it would have slight or no bearing upon whether the compulsion of a threat to prosecute appellant’s family, or the inducement of a promise of their immunity, if present on the 17th, would have persisted as a *961motivating factor in producing appellant’s confession on the 20th.
It follows that the admissibility of the confession on the 20th could not be reliably determined without first determining whether improper influence was brought to bear upon the appellant on the 17th. Appellant was entitled to a reliable determination, by the court, of both the underlying factual issues and the voluntariness of his confession, and, in my opinion, the refusal of the trial court to consider the interview of the 17th, and its relationship to the interview of the 20th, was therefore error. Cf. Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
IV
Appellant testified on his own behalf. The prosecutor asked him on cross-examination whether one of appellant’s witnesses, Mr. Goslaw, was his “crime partner,” and whether appellant and Mr. Goslaw had together robbed a named bank, not one of the four banks involved in the indictments. Appellant was required to answer over his objection.19 He denied that he had participated in the robbery of the fifth bank and denied that he had previously admitted doing so. In rebuttal the government offered the testimony of an FBI agent that appellant had admitted committing the robbery with Mr. Goslaw.
It would have been improper and highly prejudicial for the government to attempt to impeach appellant by asking him to admit participation in a criminal act for which he had not been convicted (Thurman v. United States, 316 F.2d 205 (9th Cir. 1963); Ramirez v. United States, 294 F.2d 277, 284 (9th Cir. 1961); Enriquez v. United States, 293 F.2d 788, 794 (9th Cir. 1961); Mitrovich v. United States, 15 F.2d 163, 164 (9th Cir. 1926); see also Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Abdul v. United States, 254 F.2d 292, 295 (9th Cir. 1958); Bloch v. United States, 221 F.2d 786, 790 (9th Cir. 1955); Allen v. United States, 115 F. 3, 11-12 (9th Cir. 1902)); yet that is the effect of what was done.
Even if appellant had been convicted of the offense it would have been improper to question him as to the details of the crime (United States v. Smith, 353 F.2d 166, 168-169 (4th Cir. 1965); McCormick, Evidence § 43, pp. 92-93; 1 Underhill, Criminal Evidence § 164, p. 312 n. 21); yet appellant was asked if he had used a .45-automatic weapon in the robbery and escaped in a stolen tan Oldsmobile; and the FBI agent testified that appellant admitted these and other details of the robbery, such as the amount of money stolen, and that the Oldsmobile was abandoned and the escape completed in a waiting truck which appellant had rented under a false name.
The government argues that its purpose was to impeach Mr. Goslaw, not appellant. The government had already used Mr. Goslaw’s participation in the robbery for this purpose by obtaining Mr. Goslaw’s admission on cross-examination that he had been convicted of this very offense. But the government argues that it was also entitled to show, as a further impeaching factor arising out of the same incident, that Mr. Gos-law might be biased in appellant’s favor, since he and appellant had participated in the affair together.
On this theory, relevance of any part of the line of inquiry was remote at best, and testimony as to the details of the offense was wholly unjustified. It *962was irrelevant to Mr. Goslaw’s credibility that appellant carried a .45-caliber weapon during the robbery, escaped in a stolen car and switched to a truck rented under a false name, and took several thousand dollars. Testimony as to these details could only serve to enhance the risk that the jury would be diverted by a completely extraneous issue, and convict appellant because of an offense with which he was not charged. Boyd v. United States, 142 U.S. 450, 457-458, 12 S.Ct. 292, 35 L.Ed. 1077 (1892).
Moreover, as evidence of Mr. Goslaw’s credibility, the entire line of inquiry was cumulative. Mr. Goslaw was a minor witness; his testimony was brief and relatively inconsequential. It would be unreasonable and unjust to admit otherwise improper testimony having such a direct and devastating impact upon appellant, simply because it might have a distant bearing upon Goslaw’s credibility. Lucero v. Donovan, 354 F.2d 16, 22 (9th Cir. 1965). See also Powell v. United States, 347 F.2d 156, 158 (9th Cir. 1965).
On appeal the government argues that the evidence was relevant to the issue of appellant’s purpose and intent. But the sole issue at the trial was whether appellant had participated in the robberies charged at all. Appellant’s defense was alibi. Purpose and intent, as such, were not an issue (see United States v. Klass, 166 F.2d 373, 378 (3d Cir. 1948)), as they were in the cases upon which the government relies. Wood v. United States, 41 U.S. (16 Pet.) 342, 359-361, 10 L.Ed. 987 (1842) (intent to defraud), and Carbo v. United States, 314 F.2d 718, 745 (9th Cir. 1963) (intent to extort). See also Chow Bing Kew v. United States, 248 F.2d 466, 470 (9th Cir. 1957).
It was prejudicial error to permit the government to ask appellant whether he had robbed the fifth bank, and to offer extrinsic evidence rebutting his denial.
For the reasons stated in parts II B, III and IV of this opinion, I would reverse.
. We assume these to be the facts for the present purpose, since appellant offered at trial to prove them if given the opportunity to do so.
. See, e. g., Wade v. United States, 358 F.2d 557 (5th Cir. 1966); United States ex rel. Stovall v. Denno, 355 F.2d 731, 735-738 (2d Cir. 1966); Rigney v. Hen*952drick, 355 F.2d 710, 713-714 (3d Cir. 1965); Caldwell v. United States, 338 F. 2d 385, 389 (8th Cir. 1964). But see Justice Clark’s comment in Estes v. State of Texas, 381 U.S. 532, 549, 85 S.Ct. 1628, 1636, 14 L.Ed.2d 543 (1964), that courtroom television “is a form of mental — if not physical — harassment, resembling a police line-up or the third degree.”
. Holt held that the constitutional issue need not be decided since the federal courts were not required to exclude evidence even if unconstitutionally obtained — a doctrine subsequently rejected in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
. The problem is not necessarily resolved by the Supreme Court’s recent holding “that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * * ” Schmerber v. State of California, 384 U.S. at 761, 86 S.Ct. at 1830, 16 L.Ed.2d 908 (1966). The Court went on to state “the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications” (384 U.S. at 763, 764, 86 S.Ct. at 1832), and noted that this includes “acts on the part of the person to whom the privilege applies,” as well as his words (384 U.S. at 761, 86 S.Ct. at 1830). The Weintraub article, cited by the Court p. 7 n. 8, suggests that voice exemplars are testimonial or communicative because the accused represents that he is speaking in his normal voice. 10 Vand.L.Rev. at 505.
See generally 2 Wharton, Crim.Evidence, § 659 at 560 (12th ed. 1955); Annot., Requiring Suspect or Defendant in Criminal Case to Demonstrate Voice for Purposes of Identification, 16 A.L.R. 2d 1322 (1951); 8 Wigmore, Evidence § 2265, at 395-97 (McNaughton rev. 1961) ; McCormick, Evidence § 126 (1954); Inbau, Self-Incrimination 49-51 (1950); Comment, 24 Ind.L.J. 587 (1949). The issue was reserved in United States ex rel. Stovall v. Denno, 355 F.2d 731, 735 n. 2 (2d Cir. 1966). For authorities on related questions see Annot., Requiring Defendant in Criminal Case to Exhibit Self, or Perform Physical Acts, During Trial and in Presence of Jury, 171 A.L.R. 1144 (1947); Annot., Pretrial Requirement that Suspect or Accused Wear or Try on Particular Apparel as Violating his Constitutional Rights, 18 A.L.R.2d 796 (1951).
. The teaching of Escobedo with respect to right to counsel under the Sixth Amendment is not affected by the Court’s decision in Miranda v. State of Arizona, 384 U.S. 436, 465, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Speaking of Escobedo the Court said (n. 35) : “The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake.”
. Cf. Turner v. State of Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546 (1965); Rideau v. State of Louisiana, 373 U.S. 723, 726-727, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). See Note, 79 Harv.L.Rev. 935, 1014 (1966).
. Compare United States ex rel. Stovall v. Denno, 355 F.2d 731 (2d Cir. 1966) (preindictment confrontation by victim); Kennedy v. United States, 353 E.2d 462 (D.C. Cir. 1965) (same); Williams v. United States, 120 U.S.App.D.C. 244, 345 E.2d 733 (1965) (pre-indictment lineup).
What occurs during pretrial interrogation of witnesses by the police or the prosecutor may also critically affect the outcome of the prosecution, but such occasions do not involve a confrontation between the accused and the state.
. “During the early stages of criminal proceedings, or, more generally, before they are instituted, a Solicitor may be instructed by a suspect either to advise whether he should attend an identification parade or to accompany him when he does attend. Identification parades, it may be thought, are an unsatisfactory means for pursuing the ends of justice. In the vast preponderance of cases the witness will have brought the suspect under suspicion as a result of inspecting photographs of convicted persons maintained at the Criminal Record Office or by a provincial police force. In the parade, the witness tends to identify the subject of the photograph rather than the person he saw when the crime was committed. Secondly, while many identification parades are conducted by the police with a scrupulous regard for fairness, it is not unknown for the identifying witness to be placed in a position where he can see the suspect before the parade forms; there is little opportunity for the attending Solicitor to know whether this has occurred or not. Final*954ly, since even the innocent suspect is aware that he alone is on risk, he is likely to become agitated and apprehensive that he might be identified, and thus tends to stand out from his companions like a sore thumb.
“On balance, therefore, it often seems wise to advise against participation in the parade. On the other hand, it should be borne in mind that often no satisfactory alternative offers itself, that the police have a duty to catch criminals and secure their conviction and that, if he remains unidentified on the parade, the suspect is relieved from the anxiety of suspicion. Too often, however, such parades are little more than fishing expeditions; then the danger becomes the more intense and, as a result, the writer, to the surprise of presiding police officers and the dismay of the Solicitors Department at Scotland Yard, requires that he be informed as to the description previously given by the identifying witness, and if necessary to question him upon it. If the description appears fairly to bring the suspect under suspicion and he, after due warning as to the risks, continues to assert his innocence, he is advised to consent to the parade. If, however, the description is so inadequate as to negative reasonable suspicion, or if his guilt is not beyond question, he must be advised against participation in the parade. The primary duty of the Solicitor must be to his client and not the public, however much his sympathies may extend towards the latter.” Napley, Problems of Effecting the Presentations of the Case for the Defendant, 66 Colum.L.Rev. 94, 98-99 (1966).
. As the Supreme Court said in Miranda v. State of Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1626 (1966), with respect to the functions of counsel at in-custody police interrogation: “If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court.”
In the course of the same opinion the Court described one lineup abuse which the presence of counsel would prevent (384 U.S. at 453, 86 S.Ct. at 1617) :
“The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a lineup. ‘The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party.’ Then the questioning resumes ‘as though there were now no doubt about the guilt of the subject.’ A variation on this technique is called the ‘reverse line-up’:
‘The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations.’ ”
. As Judge Friendly recently said in response to “the rhetorical question as to what counsel could have done” in connection with a police-arranged confrontation between the victim of a crime and the accused (355 F.2d at 744) :
“He might have persuaded the prosecutor, in the state’s own interest, if not to forego the hospital identification, at least to assure conditions better designed to avoid suggestion. He might have persuaded the judge to direct that Stovall be immediately sent to and then kept in jail pending trial, or be put before Mrs. Behrendt only under fair conditions such as a line-up, or be accompanied by counsel who might question her * * *. Or, as a last resort, he might have advised Stovall to refuse to go, or to remain silent if taken by force.”
. See Miranda v. State of Arizona, 384 U.S. 436, 465-466, 86 S.Ct. 1602 (1966); Escobedo v. Illinois, supra, 378 U.S. at 490 n. 13, 84 S.Ct. 1758, 12 L.Ed.2d 977; Note, 19 Rutgers L.Rev. 111, 134-37 (1964); Note, 25 Mont.L.Rev. 174, 178 (1963); Comment, 73 Yale L.J. 1000, *9551016, 1028, 1034, 1051 (1964). But see United States ex rel. Stovall v. Denno, 355 F.2d 731, 740 n. 1 (2d Cir. 1966) (Lumbard, C. J., concurring); Kennedy v. United States, 353 F.2d 462, 464-465 (D.C.Cir. 1965). In England counsel is available to accused at lineup as “absolutely essential in the interests of justice.” Wall, Eye-Witness Identifications in Criminal Cases, p. 43 (1965).
It should be noted in passing that in at least one of our great metropolitan areas “[b]oth the suspect and his attorney are notified that he is to be placed in a lineup; the attorney is also given the opportunity to be present” (Rigney v. Hendrick, 355 F.2d 710, 712 (3d Cir. 1965)), with no suggestion that this recognition of the right to counsel has interfered with effective identification of offenders by police. See also Miranda v. State of Arizona, 384 U.S. 436, 483, 489, 86 S.Ct. 1602 (1966); N.Y. Times, May 19, 1966, p. 44 M, col. 1; “The clear consensus at the 60th annual meeting of the National Association of Attorneys General was that the Supreme Court’s ruling in Escobedo v. [State of] Illinois had had little or no effect on the obtaining of confessions. * * * Furthermore, Jack P. S. Gremillion, Attorney General of Louisiana and president of the association, said that even the presence of lawyers during interrogation had not ‘hurt the confession rate a bit.’ Mr. Gremillion said that ever since the Escobedo case lawyers in his state had been present in the back rooms of police stations. ‘If the suspects haven’t got the money we appoint lawyers for them, and it hasn’t made a bit of difference as far as confessions go.’ ”
. See note 8. See also Frank, Not Guilty 157-158.
. The witnesses testified regarding the lineup identifications on cross-examination.
. The government suggests that the motion to suppress was untimely because not made until all but one of the government’s witnesses had completed their testimony. The court undoubtedly had discretion to entertain the motion when made (cf. Fed. R.Crim.P. 41(e); Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960)), and indicated that it declined to do so only because the testimony regarding the lineup identification was not introduced by the government.
. See also IV Wigmore § 1130, at 208 (3d ed. 1940) :
“Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness’ act of pointing out the accused (or other person), then and there in the courtroom, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person’s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him.”
See also Frank, Not Guilty 148-50, 157-58 (1957).
. As the Jaeolson case demonstrates, the fact that the proffered evidence is testimony rather than a tangible object does not alter the principle, but only requires that the intervention of human memory, will, and emotion be considered with other relevant circumstances. Wade v. United States, 358 F.2d 557 (5th Cir. 1966), and United States ex rel. Stovall v. Denno, 355 F.2d 731, 735, 741 (2d Cir. 1966) (Lumbard, C. J., concurring), also present relevant factual situations, but deal with the problem as one of determining whether admission of the courtroom identification was “harmless error” under the standard stated in Fahy v. State of Connecticut, 375 *958U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). See also the following, involving related though somewhat different issues. Wong Sun v. United States, supra, 371 U.S. at 485-486, 491, 83 S.Ct. 407; Collins v. Beto, 348 F.2d 823, 835 (5th Cir. 1965) (Friendly, J., concurring); Smith v. United States, 344 F.2d 545 (D. C. Cir. 1965); Edwards v. United States, 330 F.2d 849, 851-852 (D.C. Cir. 1964) (testimony of Berry); United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964) ; McLindon v. United States, 117 U.S.App.D.C. 283, 329 F.2d 238, 240-241 (1964); and Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879, 881-82 (1963).
. Appellant does not rely upon the doctrine of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), apparently conceding that his right to counsel was waived.
For a discussion of the applicability of Canon 9, the Canons of Professional Ethics of the American Bar Association, see Broeder, Wong Sun v. United States: A Study in Faith, and Hope, 42 Neb.L.Rev. 483, 599-604 (1963). See also Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963); Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964, 970 n. 18 (1964). The present case differs from that presented in United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1966), rev’d on other grounds 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), since at least from the time the agent telephoned the prosecuting attorney, the latter must be charged with responsibility for the continuation of the interview.
. See also Inbau & Reid, Criminal Investigation and Confessions 192-93 (1962) : “Once improper interrogation methods have been used on a subject, a presumption exists that their influence upon him is a continuing one. The prosecution must assume the burden of proving that when the subject confessed later on he was no longer dominated or affected by the influence of the earlier improper interrogation practices. Moreover, the courts have demanded a very high degree of proof to offset the presumption that prevails in favor of the accused.
Whenever an interrogator is called upon to interrogate a subject who has been mistreated or threatened, he should be informed (and the conditions surrounding the interview should so indicate) that no further mistreatment or threats will occur, and if a previous objectionable promise has been made it should be revoked in unmistakeable terms. Moreover, none of the persons who were in any way involved in the previous interrogation should be present at the subsequent one.”
. The ground initially stated for the objection (that the question rested upon an unproven allegation) was inadequate, indeed misleading. However, appellant’s counsel later objected to any proof that appellant had admitted the fifth robbery, and the government does not seek to support the trial court’s action on the ground that appellant’s objection was inadequately stated.
Also, the trial court, inconsistently, refused to permit the appellant to cross-examine the FBI agent along lines designed to weaken the government’s claim that appellant had robbed the fifth bank.