with whom BAUER, Chief Judge, WOOD, Jr., CUDAHY, and RIPPLE, Circuit Judges, join, dissenting.
Despite the majority’s focus on the question of harmless error, there is an important question of law embedded in this appeal which has unfortunately been neglected. To identify and resolve this issue, we must retrace our steps. The original panel majority in this case found that the trial court had offered to sever the trials of Hunter and Hatcher when the no-inference instruction dilemma first presented itself, so that Hunter might receive the instruction and Hatcher would not. The panel majority noted that Hunter had refused the district court’s severance offer, and concluded that this refusal constituted waiver of his fifth amendment right, see Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), to a no-inferenee instruction.1 The necessary predicate to this *867conclusion was the panel’s belief that severance was an acceptable solution to the defendants’ divergent instruction requests. I disagree with this proposition, and so, it appears, do my colleagues in concurrence. The original panel majority’s position on the question of waiver clearly burdens a defendant’s exercise of his right to a no-inference instruction, a right which in my view is absolute. As Judge Easterbrook succinctly puts it, “A judge may not compel the accused to choose between the right (established by the double jeopardy clause) to get things over with in a single trial and the right to the Carter instruction.” Ante at 865. Indeed, to compel a defendant to submit to retrial rather than grant his constitutionally sanctioned instruction request places an unnecessary and unacceptable burden on his “valued [fifth amendment double jeopardy clause] right to have his trial completed before a particular tribunal.” Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978); see also Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Given that the no-inference instruction could be issued without constitutional problem over the objections of Hunter’s co-defendant, see Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), I believe the trial court erred in not simply granting Hunter’s instruction request. I further believe that the original panel majority erred in holding that severance was a constitutionally acceptable alternative to granting the request. In short, the fifth amendment mandates that requests for no-inference instructions in all circumstances be honored. I regret that the majority declines to address this question of law, ante at 859, which, in my mind at least, motivated the court’s decision to rehear this case en banc.
I further part company with the majority on the question of harmless error. The district court concluded that the state did not prove the trial court’s failure to give the no-inference instruction to be harmless beyond a reasonable doubt, and I defer to that conclusion. The district court did not believe that the state presented “substantial direct evidence” against Hunter. It observed that the testimony of Smith and Thompson consisted primarily of hearsay *868accounts of the crime rather than more credible eyewitness accounts, and surmised that there was a “ ‘reasonable possibility’ that the jury may have considered the petitioner's failure to testify as a tacit admission to the truthfulness of [Hunter’s] incul-patory statements ...” (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171). The court held that because the only powerful evidence against Hunter was Phyllis Jones’ identification, the state had not met its burden of proving the trial court’s error harmless beyond a reasonable doubt.
In my view, the evidence against Hunter, though clearly not insignificant, was not “overwhelming” either. I recognize that the state has presented and the majority has pointed to a good deal of circumstantial evidence linking Hunter to the robbery. In the end, however, this seems to me, at its core, a one-eyewitness case in which two of the other people testifying against Hunter did so, at least in part, in order to avoid prosecution.2 A third witness, Tracy Williams, appears to have identified Hunter for the first time in court, five months after the robbery took place. While I do not question the admissibility of Williams’ identification, I note the suggestive nature of first-time in-court identifications. See Moore v. Illinois, 434 U.S. 220, 229-230, 98 S.Ct. 458, 465-466, 54 L.Ed.2d 424 (1977).
Although I recognize that the failure to give the no-inference instruction may, in some cases, be harmless, I cannot lightly discount the possible prejudicial effects of such error. The right to receive a no-inference instruction was created in recognition of the fact that “many, even those who should be better advised, view [the fifth amendment] privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are ... guilty of crime_” Carter, 450 U.S. at 302, 101 S.Ct. at 1120 (quoting Ullman v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511 (1956)). Viewing the evidence against Hunter with these cautions in mind, I am constrained to agree with the district court that the Indiana trial court’s failure to give the no-inference instruction may have substantially affected the jury’s evaluation of the credibility of Smith and Thompson. This is no doubt a close case on the question of harmless error; given the nature of the evidence against Hunter, I, like the experienced district court judge in this case, cannot conclude with confidence that the trial court’s failure to honor Hunter’s instruction request was harmless beyond a reasonable doubt.
. My review of the record indicates that, in fact, the trial court never offered Hunter severance as an option. The Indiana court discussed the no-inference instruction at two points during *867trial. The first occurred after the jury was sworn in, during the court’s review of preliminary jury instructions with counsel. After being presented with the defendants’ conflicting requests, the trial judge told counsel that he would not give the instruction because "the Supreme Court says it doesn’t have to be given.” See State R. 165. In response, the following colloquy ensued between Hunter's counsel, Mr. Fair-man, and the court:
Fairmatt: It is [Hunter’s] desire that the instruction be given.
Court: So you want severance of the Jury trial then to be able to do that?
Fairman: Judge, we’re just requesting that instruction to be given. And, we would like our objection noted as not being given at this point.
Court: I’ll show your request to be given noted for the record. And, possibly, by the time we get around to final instructions maybe I will give it.
Id. at 165-66. Later in the trial, during its review of final jury instructions with counsel, the court made its only other statement about and final resolution of the no-inference instruction issue:
Court: [T]hat brings us down to the final instruction tendered by Defendant Hunter. To the instruction that was tendered by Defendant, Hunter, that being one which is under advisement since it was originally offered in the Court's preliminary instructions. There was an objection at the time by Mr. Spencer [Hatcher’s counsel], that objection has been renewed. There was no objection by the State. Since there is objection by one of the Defendants it will be the Court’s determination that that instruction will not be given.
State R. 1180-81.
The record excerpts make abundantly clear that the court never offered Hunter severance as an option. The court merely asked, as a point of clarification before the presentation of evidence, whether severance was what Hunter sought, and in fact held out the possibility that it might issue the no-inference instruction at the close of trial. After the presentation of evidence, upon deciding not to issue the final no-inference instruction, the court never suggested that it was ruling against Hunter because he declined an earlier severance offer; it merely ruled that "[s]ince there is objection by one of the defendants ... [the] instruction will not be given." If the trial court had intended to respond to Hunter's instruction request by offering severance, one would expect to see at least some mention of severance in the court’s final denial of that request.
. The majority asserts that one of these witnesses, Howard Smith, identified Hunter as being present in bank photographs taken during the course of the robbery. The man who Smith identified as Hunter was wearing a ski mask that completely shrouded his face, as well as a dark jacket, dark pants, and dark shoes. See State R. 752. Smith testified that he was nevertheless capable of identifying the masked man. Id. at 728. Such testimony, of course, is of limited probative value and casts doubt on the credibility of Smith’s other testimony.