(concurring).
We granted rehearing on this ease in order that the court en banc might consider the difficult question of where the burden of proof lies when a claim is made that a plea of guilty in a state court was not knowingly entered and the contemporary record is either silent or inadequate as to an inquiry by the judge concerning the defendant’s knowledge of the charge and the consequences of his acknowledgement of guilt.
For future cases the question is now governed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which requires the state court record to disclose that a plea of guilty was knowingly and voluntarily made and establishes a prophylactic per se rule invalidating a plea if the record is silent. We have held, however, that Boykin is prospective only.1 The problem, therefore, continues to exist where the plea under attack predated the decision in Boykin on June 2, 1969.
It is precisely in past cases where there is a silent record that the significance of the allocation of the burden of proof is magnified and often will be decisive. For, of course, the evidence must come from those who are familiar with the transaction, who will usually be the prosecutor, the judge, the defendant and his lawyer, if he had one at the time. If the burden of proof is placed on the state it will have the evidence of the prosecutor and the judge, if they are still available, but they can hardly be expected to recall the facts in any one of numerous long past cases. And if the state should call the defendant, he will obviously be a hostile witness. If on the other hand the burden of proof is placed on the defendant, it would appear to be *1405easier for him to bear it. For he is available to testify on his own behalf and also may call the lawyer who represented him at the plea. In fact, however, the advantage is more apparent than real. For the defendant’s credibility is affected by his strong self-interest, and the lawyer who represented him may, as in this case, no longer be available and, even if he is, has a fundamental interest in justifying the conduct he advised.
We had this problem presented to us in a number of cases and adopted the view that the Constitution requires that in case of a silent or inadequate record, the burden of proving that a plea of guilty was knowingly and voluntarily made rests on the state. See United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3 Cir. 1968); United States ex rel. Fink v. Rundle, 414 F.2d 542 (3 Cir. 1969).
Since we ordered rehearing in this case to reconsider the problem a fresh element has appeared in the decisions of the Supreme Court of the United States in McMann v. Richardson,2 Brady v. United States3 and Parker v. North Carolina,4 all handed down on May 4, 1970.
The McMann trilogy, however, is not based on a silent or inadequate record, nor does it decide where the burden of proof lies in an attack on a plea of guilty. Indeed, there are indications that there was no inadequacy in the records of the pleas of guilty there and that the claims went to matters which would not have been revealed by a full inquiry. In any event, while there may be much speculation regarding the effect of these significant decisions, we. need not determine at this time the boundaries by which they are confined. What is significant for the present case is that the Court placed repeated emphasis on the presence of competent counsel when a plea of guilty is entered as an assurance that it is done with a full understanding of the charge and the possible consequences of the plea.
I would apply this fundamental distinction in determining the allocation of the burden of proof in cases such as this. The layman’s notion of a plea of guilty is that it means simply that he has committed the act charged. He would hardly be expected to know the technical ingredients of the crime, the elements which the state must prove to establish it, the defenses which he might raise to it, or the nature and extent of the punishment which may be imposed if he is found guilty. It is for this reason that a defendant is entitled to counsel when he enters a plea of guilty and that the plea is invalid if it is entered without the assistance of counsel unless the right to counsel is waived.5
Where the defendant pleads guilty with the advice of counsel, however, there is no reason to presume that he was ignorant of the nature of the charge or the consequences of the plea. Indeed, the more rational assumption is that all the necessary considerations which should have been recorded at the guilty plea proceedings were canvassed with him by his counsel before the decision to plead guilty was reached. In such a case, therefore, even though the record is silent, we should presume that the plea of guilty was voluntarily entered as an intelligent and knowing act rather than presume the contrary.6
*1406I therefore would adopt a standard in pre-Boykin cases which depends upon whether the defendant was represented by counsel. If he had no counsel,7 the rule should remain as in McCloud, Crosby and Fink that the burden of proof is on the state to show that the plea was knowingly and voluntarily made. If he had counsel, however, the burden should rest on the defendant to prove that his plea of guilty was not knowingly and voluntarily made, and to the extent that McCloud, Crosby and Fink are inconsistent with this view, I would hold that they are no longer to be followed.
Since the defendant in this case was represented by counsel when he pleaded guilty in the state court, the district court correctly placed the burden upon him to overcome his plea. Its finding that the defendant did not meet his burden is fully justified by the evidence and therefore should be sustained.
I therefore concur in affirming the order of the district court.
SEITZ and ADAMS, Circuit Judges, join in this Opinion.. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Commonwealth of Pennsylvania, 423 F.2d 55 (3 Cir. 1970); United States ex rel. Wiggins v. Pennsylvania, 430 F.2d 650 (3 Cir. 1970).
. 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
. 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
. 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
. See Brady v. United States, 297 U.S. p. 748 n. 6, 90 S.Ct. p. 1469, and cases there cited.
. It is true that there is language in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), which may appear to imply that the burden rests on the government to prove that a guilty plea is voluntary. The Court, there, however, was not dealing with the burden of proof, nor with a constitutional question (see Halliday at 832, 89 S.Ct. 1498), but rather with the per se *1406rule of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), invalidating federal guilty pleas on a silent or inadequate record for violation of Rule 11 of the Federal Rules of Criminal Procedure. It held that in pre-McCarthy cases where the record did not disclose compliance with Rule 11, McCarthy does not retrospectively apply, but that defendant still may challenge the voluntariness of his plea on factual grounds.
. If the defendant did not waive his right to counsel, the plea may be invalid without more. See supra, n. 5.