dissenting.
The aims of justice are not served by disregarding popular wisdom. Whatever may be the precise legal construction given to the constitutional privilege against self-incrimination, the fact remains that “taking the Fifth” and “refusing to answer” have entered the everyday idiom as synonyms for guilt. Before a jury drawn from the community, the admission of evidence concerning invocation of the privilege at a grand jury hearing is irrelevant, inflammatory and invariably prejudicial.
As I read the majority’s opinion, it concedes that evidence concerning a Fifth Amendment claim before a grand jury is inadmissible. Relying on Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the majority first concludes that questioning a defendant about the invocation of this privilege creates an overwhelming presumption of prejudice and therefore cannot be sanctioned. The Court next holds that questioning a non-party defense witness regarding Fifth Amendment claims constitutes a trial impropriety, subject only to a harmless error determination. Applied to the facts of this case, the majority holds that defense witness Anna Kushnir’s testimony was either “remote” from the crimes charged or was in any event “given credit” by the jury so that any error committed at trial was harmless.
To the extent the majority would require reversal of a conviction following examination of a defendant about the self-incrimination privilegé, I join in that ruling. However, because I have serious reservations about the harmless error rule adopted by the majority in the case of non-party defense witnesses as well as the majority’s reading of the record, I respectfully dissent.
I
The question whether inquiry into the invocation of the Fifth Amendment privilege constitutes prejudicial error is before this Court for the first time. The Second and Eighth Circuits have held that questioning defense witnesses on this point is inappropriate and may require reversal of any ensuing convictions. In United States v. Williams, 464 F.2d 927, 930 (8th Cir.1972), the court declared:
We hold that the prosecutor, through his question and argument relating to [key defense witness] Harris’ invocation of the Fifth Amendment, injected prejudicial error requiring reversal.
Similarly, the Second Circuit in U.S. v. Natale announced the rule that:
Where a prosecutor directly asks a defense witness at trial whether the witness refused to answer questions at the grand jury proceedings because the answers might tend to incriminate him, courts have found prejudicial error and reversed the convictions .... Such direct efforts to impeach a defense witness are improper under Grunewald v. United States, . . . [which] was based on that view that the question prejudiced the credibility of the defendant without sufficiently bearing on the truth of the testimony he had given at trial.
526 F.2d 1160, 1171 (2d Cir.1975). See also United States v. Glasser, 443 F.2d 994, 1005 (2d Cir.1971), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971).
While categorically rejecting prosecutorial inquiry into Fifth Améndment privilege, Natale does not adopt a per se rule of reversing all ensuing convictions. Rather, the Second Circuit would judge such prosecutorial misconduct harmless error if 1) the witness’s testimony concerned events remote from the crime charged and 2) there was no likelihood of confusion in the jury’s mind between the invocation of the privilege by the witness and the defendant’s conduct. 526 F.2d at 1171. The majority opinion in the present case adopts the Second Circuit’s Natale rule, but then relies upon an expansive view of its harmless error exception.
*1128The Natale guidelines do not appear sufficient to guarantee a defendant’s right to a trial free of prejudice. The privilege against self-incrimination protected by the Fifth Amendment is, of course, of constitutional magnitude. Its function is “to protect innocent [persons],” Grunewald, 353 U.S. at 421, 77 S.Ct. at 982, and its invocation is therefore perfectly consistent with innocence. Under either the majority or minority view in Grünewald,1 the line of questioning followed by the Nezowy prosecution has no place in a criminal proceeding. The Grünewald Court, however, did not address the possibility of a harmless error exception to its constitutional holding since both the majority and minority agreed that the resulting prejudice required reversal of the convictions.
I am reluctant to accept, as does the majority, that a simple harmless error standard is adequate to protect the defendant’s right to a fair trial. Rather, assuming that a per se reversible error rule is not more appropriate, I believe that a strong argument can be advanced for placing upon the prosecution the burden of proving that the error in question was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). As the Supreme Court declared in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963).
The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.
It is true, as the majority points out, that both Chapman and Fahy involved violation of a defendant’s constitutional right. But this distinction between defendants and non-defendants does not settle the question whether the Chapman/Fahy standard applies to the present case. Instead, I believe that two independent arguments may be advanced for invoking stricter constitutional standards in cases in which testimony concerning Fifth Amendment privileges is introduced at trial.
First, the majority position provides no reason for distinguishing defendant from non-party witness testimony for constitutional purposes. It is correct as a basic proposition that “[o]rdinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953). This general consideration, however, may be “outweighed by the need to protect ... fundamental rights,” id. at 257, 73 S.Ct. at 1035, and is therefore not amenable to .rigid application. In fact, different standards have been adopted for third party assertion of constitutional rights depending on the nature of the rights themselves. Compare Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (no vicarious raising of Fourth Amendment rights of others to suppress illegally seized evidence) with NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (civil rights organization permitted to assert First and Fourteenth Amendment rights of its members).
Although a significant body of case law has developed concerning claims by criminal defendants of the Fourth Amendment rights of third parties, see e.g., United States v. Salvucci, 448 U.S. 83, 100 S.Ct. *11292547, 65 L.Ed.2d 619 (1980), there is no controlling body of precedent for the Fifth Amendment. What cases do exist turn on combined Fourth and Fifth Amendment claims for the suppression of evidence obtained as a result of interrogations without Miranda warnings or trial examinations of non-party witnesses who could have raised the Fifth Amendment privilege. See, e.g., United States v. Fredericks, 586 F.2d 470, 480-81 (5th Cir.1978); United States v. Skolek, 474 F.2d 582, 585 (10th Cir.1973); Bryson v. United States, 419 F.2d 695, 698 (D.C.Cir.1969). These decisions are not applicable to the case at bar since our concern is not with the evidentiary fruits of potentially privileged testimony but the infection of the trial process itself by the extraneous interjection of prejudicial testimony concerning the invocation of the Fifth Amendment.2 The sole case addressing this precise point, United States v. Colyer, 571 F.2d 941, 946 (5th Cir.1978) cert. denied, 439 U.S. 933, 99 S.Ct. 325, 58 L.Ed.2d 328 (1978), assumes the applicability of the Chapman standard without further discussion.
As I see it, the question whether the prosecution’s cross-examination of Kushnir necessitates the stricter standard of protection given to constitutional error is closely akin to the question of third-party standing. Under the case law governing jus tertii, a litigant may assert constitutional claims other than his or her own when the same act, “both injures [the litigant] and impinges upon the constitutional rights of third persons.”3 By analogy, a criminal defendant may properly assert a third party con*1130stitutional claim, and therefore fall within the ambit of the stricter Chapman standard, if the constitutional claim raised is valid and" trial error is committed. Under these circumstances, the validity of a constitutional claim would be governed by this Court’s two-part test set forth in Bowman v. Wilson, 672 F.2d 1145, 1152-53 (3d Cir.1982):
For a person who himself can allege injury in fact to be permitted to assert the constitutional rights of another, thereby seeking redress of both his own injury and that of the third party, two requirements must be satisfied. First, not only must there be a close relationship between the litigant and the person whose right he is asserting, but the activity the litigant proposes to pursue must be inextricably bound up with the constitutional right of the person from whom the right is drawn. See Singleton v. Wulff, 428 U.S. 106, 114-15 [96 S.Ct. 2868, 2874-2875, 49 L.Ed.2d 826] (1976) (plurality). Second, there must exist some obstacle to the third party asserting his or her own rights. Id. at 115-16 [96 S.Ct. at 2874-2875]. If both requirements are met, a party who is injured by the conduct of another but is not the beneficiary of the constitutional right proscribing that conduct can nonetheless complain of that injury by asserting the right of the injured third party.
(footnotes omitted). It would appear that Nezowy’s assertion of Kushnir’s Fifth Amendment privilege satisfies both prongs of the Bowman inquiry.
A second, independent basis for applying the Chapman/Fahy standard is found not in the Fifth Amendment, but in the Sixth. Under the Sixth Amendment, a defendant must be able to confront witnesses or to introduce testimony to rebut evidence or inferences that could lead to a conviction. Allowing inquiry into a defense witness’s assertion of the self-incrimination privilege effectively deprives a criminal defendant of these Sixth Amendment rights. An inference of guilt cannot be rebutted since the witness may not be forced to explain the basis for having invoked the Fifth Amendment or to dispel the implications of guilt. See Brink’s, Inc. v. City of New York, 717 F.2d 700, 716 (2d Cir., 1983) (Winter, J., dissenting). Thus, the prosecution’s .questioning of Kushnir infringed upon important Sixth Amendment rights of the defendant himself. Regardless of whether Nezowy can assert a third party claim, this infringement of the Sixth Amendment independently provides him standing and would therefore appear to require application of the Chapman harmless beyond a reasonable doubt test.
If we were to apply the Chapman test, Nezowy’s conviction could not withstand scrutiny. As this Court previously held in United States ex rel. Macon v. Yeager, 476 F.2d 613, 616 (3d Cir.1973), a conviction cannot be sustained when critical portions of the evidence are disputed and the case is not so overwhelming that the Court can conclude beyond a reasonable doubt that the constitutional error did not contribute to the conviction. I do not, however, reach the ultimate question of the application of the Chapman standard because an analysis of the record establishes that even under the majority’s harmless error test a new trial is required.
II
Nezowy was charged with falsifying asylum applications for six Polish nationals. He was convicted on three of the eleven counts. On its face, this division between convictions and acquittals suggests that witness credibility and detailed factual inquiries were of significance. The majority contends that the testimony of key defense witness Kushnir was “remote and far removed,” at 1125, from the crimes charged. I cannot agree.
Kushnir testified that she was a business associate of Nezowy from 1972-78. She stated that she participated in interviews with Polish nationals seeking asylum while she was working as a paralegal and secretary with Nezowy and his associate, attorney Louis Konowal. App. at 1175. Ms. Kushnir further testified that she is fluent *1131in Polish and was fully able to follow the conversations regarding the applications for altered immigration status. App. at 1180-81. She gave general exculpatory testimony concerning the business practices of Nezowy based upon her having been a party to a number of the allegedly criminal transactions. Moreover, she gave specific testimony regarding the events surrounding the asylum applications of Pas and Grech; Nezowy was charged with having falsified both applications.
While Nezowy was acquitted on the charge of falsifying Grech’s application, he was convicted on a similar charge with regard to Pas. The majority opinion seeks to minimize the value of Kushnir’s testimony concerning what transpired with Pas. The record, however, reveals that Kushnir was familiar with Pas’s file and that she testified that Pas had applied for asylum prior to meeting with Nezowy. App. at 1175-76. She further testified that Pas’s first meeting* was with Konowal, not Nezowy, and that at the one meeting she attended where Nezowy was present with Pas, Nezowy declared that Pas’s asylum application had been withdrawn pursuant to her request. App. at 1174-77. Were the jury to have believed Kushnir regarding Pas’s immigration application, Nezowy could not have been convicted of falsifying her asylum request.
The record thus demonstrates that Kushnir was indeed a critical defense witness. Her close business association with Nezowy, in particular her attendance at meetings which Nezowy had with some of the Polish nationals, also establishes that she was a likely participant of the activities referred to in the indictments. Under these circumstances, I am unable to say that the jury could not have imputed wrongdoing to Nezowy as a result of having been informed of Kushnir’s Fifth Amendment plea.
Ill
For the foregoing reasons, I respectfully dissent.
. The Grünewald majority found that the prior invocation of the Fifth Amendment could be admitted into evidence only if there were a threshold preliminary inquiry by the trial judge:
[Pjrior statements may be used to impeach the credibility of a criminal defendant or an ordinary witness. But this can be done only if the judge is satisfied that the prior statements are in fact inconsistent.
353 U.S. at 418, 77 S.Ct. at 981. Because asserting the privilege is consistent with innocence, Grünewald creates a heavy presumption against any cross-examination on this point. In the present case, the trial judge made no preliminary inquiry as required by the Grünewald majority.
Justice Black’s concurrence in Grünewald, joined by three other Justices, went one step beyond the majority and adopted a per se rule:
I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it.
Id. at 425, 77 S.Ct. at 984 (Black, J., concurring).
. It must be emphasized that the introduction of Kushnir’s prior invocation of the Fifth Amendment was not inadvertent. The matter was raised at side bar and resolved as follows:
[U.S. Attorney] MS. SPEARING: Your Hon- or, I would like to inquire into [Kushnir’s] taking the Fifth Amendment in the grand jury as to whether or not she answered truthfully in the grand jury....
Your Honor, if we could go back to the reason we asked for the side bar because we wanted to ask Miss Kushnir whether she answered questions or whether she in fact invoked her Fifth Amendment privilege so as to show she understood the advice and so on [U.S. Attorney] Mr. Finkelstein was giving her and is perfectly capable of standing up to the Government, contrary to the implication, and I simply did not want to create reversible error by somehow bringing out any evidence with respect to Fifth Amendment privilege in an improper context. I don’t believe that it’s improper, but I would like the Court to rule on that.
[Defense Attorney] MR. CARABELLO: It’s my contention at this point — and what I intend to do so we can get a ruling immediately is, according to the ruling that you made, your Honor, concerning the testimony that she would—
THE COURT: How does that impeach her credibility?
MR. CARABELLO: Number one, I asked her—
THE COURT: I know what you asked her. How does what she has been asked so far impeach her credibility? ....
All right, the thing that’s before me now is whether the Government can go on and read to her the testimony to bring out by questioning that she invoked her Fifth Amendment privileges and I think the better way to do it, rather than to read it from the statement, would be to ask her and I will permit the Government to ask her that question.
MRS. AINSLIE: Fine.
MR. CARABELLO: Note my objection.
THE COURT: Why are you objecting?
MR. CARABELLO: I think it’s prejudicial, your Honor.
App. 1209-13.
. Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 424 (1974). While the standing issue usually arises in bringing a controversy to court (as in First Amendment overbreadth cases), this Note ably analyzes the doctrinal confusion surrounding third-party claims:
The patchwork of exceptions, based upon considerations of questionable force and relevance, seems to indicate both dissatisfaction with the presumption against assertion and a lack of coherent doctrine to guide the court in adjudicating jus tertii claims. A practice of permitting claimants to assert jus tertii when the injury of which they complain also deprives third parties of constitutional rights is necessary to ensure that such rights are fully protected. Such a practice would inject a greater degree of candor and consistency into Court decisions than is engendered by a rule most often honored in the breach. Finally, the suggested practice would permit the Court to turn its attention in jus tertii cases to the substantive constitutional claims presented without the risk of confusing the merits with procedural questions of standing.
Id. at 443.