dissenting:
I think that what we are dealing with in this case is tantamount to a confession, and that the rulings of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), call for the application of a per se rule. The hearings adumbrated by Jackson v. Denno, should receive our committed adherence. Chapman v. California was not conceived as an absolution for all constitutional errors and I subscribe to the belief that there are some errors of constitutional magnitude that should receive per se treatment.1 The case sub judice falls within that ambit.
Even if my position with respect to the applicability of the per se rule is not the law of this circuit, I still do not subscribe to the majority analysis in this case.
The majority concludes that the trial court erred when, over the defendant’s objection, it conducted a hearing on the admissibility of the defendant’s statements in the presence of the jury. The majority labels this procedure “patently unreasonable” under Constitutional standards. Maj.Op. at 724. With this conclusion, I heartily agree. I cannot, however, agree *727with the majority’s conclusion that the error was harmless.
In holding this error to be harmless, the majority notes that the in-court hearing disclosed nothing prejudicial to LaRoche. But LaRoche may well have been prejudiced from what the jurors inferred from the hearing. The majority recognizes this possibility, but labels it an “outside chance.” Maj.Op. at 724. I feel that there is certainly much more than an outside chance of such prejudice. In fact, I think it likely that the jurors did draw “adverse inferences from watching LaRoche’s attorney attempt to suppress the statement on what might have seemed a ‘technicality.’ ” Maj.Op. at 724. It is likely that the jurors resented what they may have viewed as the defense attorney’s efforts to get his client off on a technicality. Also, the jurors may well have resented LaRoche for trying to keep from them what they no doubt regarded as highly probative evidence. But most important, the jurors must have concluded that the suppressed evidence was very damaging to LaRoche. Why else, they would reason, would the defense attorney struggle so hard to keep it out?
I cannot subscribe to the majority’s view that the later introduction of the suppressed statement would have satisfied any curiosity the jurors might have felt. It was not made clear at the hearing that only one statement was at issue. The jurors may well have imagined that a whole string of statements, including a confession, was suppressed. This seems especially likely since the statement which later came out was not that harmful to LaRoche.2 Thus, it is likely that the jurors concluded that the suppression fight must have applied to other statements as well.
The majority notes that “no concrete prejudice has been alleged or demonstrated by LaRoche.” Maj.Op. at 724. But the majority gives no hints as to how LaRoche could demonstrate such “concrete prejudice.” What does the majority want? Affidavits from the jurors? A tape recording of their deliberations? LaRoche has done all that he can to show prejudice. He has pointed out what common sense tells us: that the jurors must have drawn adverse inferences from the in-court hearing. This should be sufficient. See United States v. Nielsen, 392 F.2d 849, 852 (7th Cir. 1968).
The majority’s final reason for holding this error harmless is the “strong” case against LaRoche. Maj.Op. at 724. I would not characterize the case against LaRoche as strong. But whether or not the case was strong, there was certainly not such overwhelming evidence of guilt that I could conclude that this error was harmless beyond a reasonable doubt. Since this is a constitutional error,3 to hold it harmless, the court must be able to conclude that it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
No one can tell, of course, exactly what impact the hearing actually had upon the jury. But because I think there is a strong possibility that LaRoche was prejudiced, I cannot conclude with the requisite degree of certainty that the error was harmless. Accordingly, I would grant the writ of ha-beas corpus.
. “[T]here are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . ” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28 (1967).
. The statement was not in itself inculpatory. It was a prior inconsistent statement which impaired the credibility of LaRoche.
. It is a violation of LaRoche’s fifth amendment right as applied to the states through the due process clause of the fourteenth amendment. *728See United States v. Nielsen, 392 F.2d 849, 852 (7th Cir. 1968).