dissenting in part with whom HASTIE, Circuit Judge, joins.
I concur in Judge Hastie’s opinion. Because it seems to me that discussion of the problem of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), in terms of “confrontation” and “critical stage” has been the source of some confusion to bar and bench alike, I add some thoughts of my own. These probably will compound rather than dispel the confusion, but in any event I will try.
In the Wade-Gilbert-Stovall trilogy the Supreme Court deals with two separate evidence problems. The first is the inherent suggestibility and hence inherent unreliability of eyewitness identifications. The second is the hearsay problem of the use of a prior out-of-court statement — the prior identification — for the truth of the matter asserted. Stovall only involves the suggestibility factor. Wade and Gilbert involve the combination of the suggestibility factor and familiar hearsay dangers. In Wade, prior lineup identification was elicited from witnesses on cross-examination in an attempt to impeach their credibility. 388 U.S. at 220, 87 S.Ct. 1926. In Gilbert, as here, the local law of evidence permitted the use of the prior out-of-court identification for the truth of the matter asserted. 388 U.S. at 272, n. 3, 87 S.Ct. 1951. The Supreme Court found that the combined dangers were just too much for use in a criminal trial unless the additional safeguard to reliability of presence of counsel was added. The semantic route which the Supreme Court took in arriving at the judgment that this result is constitutionally mandated now tends to obscure the fundamental reasons for the rule. Wade is an exclusionary rule directly related to reliability of the evidence, and hence to the integrity of the fact finding process. This is not a prophylactic rule. Compare, e. g. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
I agree with Judge Hastie that it is impossible to distinguish the photographic identification problem from the corporeal identification problem. The use of a prior photographic identification for the truth of the matter asserted combines the same elements of possible unreliability as does the use of prior corporeal identification.
Moreover, some language in Judge Al-disert’s opinion goes much further in authorizing use of prior photographic identifications for the truth of the matter asserted than I think appropriate. This is a state habeas corpus case. Thus it presents only the issue whether the rule of United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970) is constitutionally mandated, and thus binding on the state courts. Zeiler was a federal prosecution. There is no need, in this case, to overrule Zeiler’s application in the United States District Courts. Indeed I believe that use by the Government of a prior identification for the truth of the matter asserted violates the rule of evidence which we held to be applicable for the federal courts under our supervision in United States v. Small, 443 F.2d 497 (3d Cir. 1971). See also United States v. Schwartz, 390 F.2d 1 (3d Cir. 1968); Government of Virgin Islands v. Pondt, 456 F.2d 679 (3d Cir., filed 1972). Because of the hearsay dangers discussed by Judge Rosenn in United States v. Small, supra, I would not permit the Government to use a prior identification for the truth of the matter asserted. The prior identification or failure to identify would, of course, be available for impeaching purposes. Nothing in Title II, § 701(a) of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 18 U.S.C. § 3502, purports to prevent us from excluding affirmative use of out-of-court identifications.