(concurring).
I concur in the result reached by the majority in this matter and approve much of their reasoning. Since I was a member of the panel that heard the first Zeiler case, United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), a short comment may be appropriate.
The concern expressed .by the minority opinion regarding the use of photographic displays in the absence of counsel and after an accused is in custody, is one which I share. Moreover, I do not dispute that such an arrangement has a potential for error. However, because so many crimes can be proved only through the use of eye witness testimony, the admission of such evidence should not be unduly restricted. Rather such judicial policy should encourage full utilization of eye witness testimony, tested, of course, in the crucible of trial proceedings.1
*747The problem, as I see it, is that the facts usually presented in cases of in-custody photographic identifications fall between situations exemplified at one end of the spectrum by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), (photographic identification at the investigatory stage), and at the other by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), (identification at in-custody corporeal lineup). In-custody photographic displays, being neither one nor the other, present the choice whether the considerations underlying Simmons or Wade2 are more applicable.
On reconsideration of the problem posed by Zeiler, I am not now convinced that the possibility for error is so great that the protections regarding such a procedure should be molded, solidified and then labelled by a Constitutional per se rule that a photographic identification constitutes a critical stage.3 Nor, in my opinion, has there been a sufficient demonstration by empirical data that prosecutorial abuse of photographic displays has been so widespread that the per se bar advocated by the minority opinion is compelled.4 In my judgment, the tools forged by the Supreme Court in Simmons would appear to be, at least at this point.in time, sufficiently effective to provide the essential safeguards and yet comport with due process as implicit in our concept of ordered liberty. See United States v. Conway, 415 F.2d 158, 162-164 (3d Cir. 1969). To put it another way, I cannot believe that the use of a photographic display, not “imper-missibly suggestive”, by an eyewitness to a crime, especially when such witness is later subjected to rigorous cross-examination, runs so counter to the bedrock of our judicial process that the fairness of the resulting conviction would necessarily be vitiated.
Having altered my stance on this issue, I find myself in a similar position to that of Mr. Justice Stewart in Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), and like him, find solace in the words of Mr. Justice Frankfurter: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” *748Henslee v. Union Planters Nat. Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (dissent). A change of position often brings forth comment, sometimes critical, but devotion to judicial integrity is more important, in my judgment, than the accolade of consistency.
Judge Van Dusen joins in this opinion and in the opinion of Judge Aldisert.
. Chief Justice Burger, then a member of the Court of Appeals of the District of Columbia, stated: “When an eyewitness is willing to give testimony, under oath and subject to all the rigors of cross-examination and penalties of perjury, he must be heard.” Brown v. United States, 126 U.S.App.D.C. 134, 143, 375 F.2d 310, 319 (1967).
Judge Gibbons, in his dissenting opinion, has suggested that because the issue before us is whether the Zeiler rule is Constitutionally mandated, we need not go so far as to overrule Zeller’s applicability to the federal courts. Implicit in his position is that Zeiler may be preserved on the theory that it represents a valid exercise of our supervisory power. However, I believe that the Court is not completely free to adopt this reasoning, since it was emphatically rejected by the Supreme Court in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968);
“ . . . We are unwilling to prohibit [the use of photographic identifications in the absence of counsel] either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.”
Furthermore, Congress enacted 18 U.S.C. § 3502 as a direct response to the Wade decision. Upon reading this section in a manner consistent with Wade so as to *747avoid any Constitutional infirmity, it becomes manifest that Congress was attempting to limit the use of the supervisory power in this situation. See 1968 U.S.Code Cong. & Admin. News 2139 (90th Cong. 2d Sess.).
. Judge Gibbons indicates that considerations behind Wade and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), include the “combination of the suggestibility factor and familiar hearsay dangers”, whereas Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), “only involves the suggestibility factor.” The hearsay point was not raised and argued by the parties here, and because of the posture of this case, we need not decide it. However, I note that in Stovall, although the witness was permitted to testify as to both the in-court and out-of-court identifications, the Supreme Court neither addressed itself to the hearsay aspect of the out-of-court identification, nor in any way intimated that the extra-judicial identification implicated hearsay.
. I am concerned that a logical extension of Zeiler would be to apply its holding to a case where the police had probable cause to make an arrest, but delayed in order to facilitate a photographic identification in the absence of counsel. Such a result might induce police to arrest suspects and have counsel appointed prior to the completion of their investigations whenever they had any doubt as to the existence of probable cause in order to arrange a photographic display that would not violate the Zeiler rule. A procedure such as this would seem unduly to restrict the proper investigation of crimes rather than to improve it, and might work hardship on persons who were originally suspected but later exonerated of criminal activity.
. Indeed, the improper conduct which motivated the Court in Zeiler has proved to be an isolated incident rather than a general practice. See, e. g., United States v. Higgins, 458 F.2d 461 (3d Cir. 1972); United States v. Bamberger, 456 F.2d 1119 (3d Cir. 1972); United States v. Medina, 455 F.2d 461 (3d Cir. 1972); cf. United States v. Carney, 455 F.2d 925 (3d Cir. 1972).