(concurring):
Although we have not held that joint representation of two defendants in a criminal case amounts to a per se denial of effective assistance of counsel, I view it as something to be frowned upon because of its potential for conflict of interest on the counsel’s part. The rules we have established in a long line of cases raising this constantly recurring problem should therefore be strictly construed. Applying them here, I find myself able to concur solely because of the absence of sufficient particularized prejudice from the joint representation of Kaplan and two co-defendants to warrant a finding that he was unconstitutionally denied his right to effective assistance of counsel under the Sixth Amendment.
Although Hodas’ successful effort at trial to disassociate himself from Kaplan and Gomberg by showing his lack of the motive they possessed and by taking the witness stand, which they did not, might have hurt *716Kaplan in the jury’s eyes, the possible harm is speculative at best and there is no showing that if Kaplan had been separately represented his counsel would have improved his tactical trial position or chosen to expose his criminal record by putting him on the witness stand. Thus, with or without separate counsel, the potential prejudice to Kaplan arising out of Hodas’ separate defense remained substantially the same.
When it comes to the questions of whether Kaplan consented to joint representation and whether the trial judge followed the proper procedure in resolving that issue, I do not share the views expressed by the majority opinion. While we have occasionally relied upon defense counsel’s statement as the basis for permitting joint representation, the preferred procedure is for the trial court, before permitting such representation, to address the defendants personally and elicit from them responses clearly indicating their understanding of the risks involved and their desire to be jointly represented. Abraham v. United States, 549 F.2d 236, 239 (2d Cir. 1977) (“defendant should be given the opportunity to express his views”); United States v. Mari, 526 F.2d 117, 118 (2d Cir. 1975), cert. denied, 429 U.S. 941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976) (defendants “replied in the affirmative” that they understood possibility of conflict and wanted to be jointly represented). The personal responses of the defendants were elicited in United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); United States v. Wisniewski, 478 F.2d 274 (2d Cir. 1973); and United States v. Sheiner, 410 F.2d 337 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969).
Here, in contrast, the trial judge did not obtain a personal response from Kaplan. Moreover, joint representation of the three defendants was permitted after one, Gomberg, repeatedly stated to the trial judge that he would like to confer with another lawyer and after his counsel had stated to the court that “There might be a conflict”; that he had unsuccessfully moved for a severance of Hodas on that ground; and that he had suggested to them (Gomberg and Kaplan) that they should get a different lawyer than counsel representing Hodas but that they had decided to continue with him as their joint attorney. In the verbal melee that followed in the courtroom, Kaplan does not appear to have been accorded any opportunity to express his views or state whether he wished to be represented by the same attorney who represented the other two defendants. Nor does the background of Kaplan, a person with a sixth grade education, suggest that he understood the import of counsel’s colloquy with the court or intelligently concurred in it.
Under all of these circumstances I cannot join in the conclusion that the trial judge’s inquiry measured up to the standards we have established or that Kaplan’s conviction should be affirmed on the ground that he knowingly and intelligently consented to continued joint representation. However, even if we assume that because of the inadequacy of the state judge’s inquiry the burden was on the state to show lack of prejudice, see United States v. Carrigan, 543 F.2d 1053, 1056 (2d Cir. 1976); United States v. DeBerry, 487 F.2d 448, 453-54 n.6 (2d Cir. 1973), I believe that burden was sustained in the present case. Absent a claim or indication of some specific instance of prejudice attributable to the joint representation, the state cannot be required to go any further in proving a negative.