concurring in part and dissenting in part:
I concur in Part I of the majority opinion, regarding impeachment of a witness by his post-arrest silence. I respectfully dissent, however, as to Part II of the majority opinion, because I believe the better rule to be that espoused by the court of appeals in this case1 and followed by the federal courts under Fed. R. Crim. P. 11 (e)(6).2
*492There are many reasons why one accused of a crime may engage in plea-bargaining and ultimately plead guilty to a lesser crime in exchange for dismissal of a more serious charge or for a recommendation that he be granted probation or a light sentence. Occasionally, hopefully only rarely, even an innocent defendant, faced with overwhelming circumstantial evidence of guilt, and threatened by the risk of being convicted of a major crime carrying a lengthy prison sentence, may forego his right to trial and plead guilty to a lesser offense in the hope that he is choosing the lesser of two evils. Some defendants may not want to put their families through the expense, embarrassment and emotional trauma of a public trial. Other defendants may for various reasons decide that the advantages of a trial may be greatly outweighed by those of pleading guilty, particularly if probation or a light sentence may be granted.
No matter what the real reason for a bargained guilty plea may be in any particular case, whether or not the trial court will accept that plea generally depends on its determination that the plea has a “factual basis.” Crim. P. 11; section 16-7-207(2)(f), C.R.S. 1973.3 Such a determination, in turn, requires the defendant or his counsel to satisfy the court that the defendant’s conduct giving rise to the more serious charges provides an adequate factual predicate to support a finding that he is guilty of the crime to which he wants to plead. Therefore, regardless of his reasons for negotiating a plea bargain, a defendant is placed in the inherently coercive situation of either providing the court with that factual basis or having the court refuse to accept his plea and force him to trial on the more grave charges. In such circumstances, a defendant may feel constrained to state what all in the courtroom expect of him, i.e., sufficient facts connecting him to the criminal incident to assure that his plea will be accepted. In my opinion, statements made under such compulsion, however subtle, cannot be viewed as “voluntary,” and therefore their trustworthiness is unreliable at best. Hence, such statements should not be admissible at a subsequent trial for the offense originally charged.
Surely it is in the public interest to avoid the delay, expense and inconvenience unavoidably incident to felony trials whenever possible. In all forms of litigation the law favors settlement of legal disputes. Indeed, were it not for the fact that most defendants charged with crimes plead guilty, our courts would be grossly overburdened with criminal trials. Because criminal trials must occur within six months4 after a not-guilty plea is en*493tered, any substantial increase in the per cent of criminal cases going to trial will necessarily force civil cases off the trial schedule.
The sound public policy favoring settlement, rather than trial, of lawsuits should require that statements made in connection with settlement or plea bargaining efforts not be admissible in evidence at the trial if the settlement efforts fail. This is the long-established rule governing attempts to compromise and settle civil litigation. McCormick, Evidence 663 (1972); IV Wigmore §1061 (Chadbourn Ed. 1972).
Nor am I overwhelmed by the majority opinion’s righteous endorsement of “determination that no defendant is entitled to pervert his right to testify into a right to commit perjury.” We are all equally opposed to sin, and perjury is as odious to me as to the majority. If indeed section 18-8-507, C.R.S. 1973 would bar prosecution for perjury of one who willfully lies at trial, the remedy is simple. The legislature can repeal the statute or enact an exception to cover this situation.
Last, but not least, we ought not adopt a procedure so fundamentally unfair as that approved by the majority. Normally a defendant will not make a statement, and thus provide evidence against himself, but for the State’s inducement through a plea bargain. Moreover, the trial court’s indication that it will refuse to accept the bargained plea unless the defendant admits facts sufficiently ensnaring him in criminal conduct to provide a “factual basis,” amounts to an ultimatum delivered to one already under considerable emotional stress. Implicit in the situation is the understanding that the defendant’s statement is being made solely for the court’s consideration in deciding whether to accept the tendered plea. In effect the statement is extracted as a condition to obtain court approval of the plea bargain. When the court rejects the plea bargain and puts the defendant on trial on the original charge, it is not fair to allow the State to retain and use against the defendant the fruits of the rejected plea bargain. In my view this procedure is so fundamentally unfair as to constitute a denial of due process. U. S. Const., Amend. XIV; Colo. Const. Art. II, sec. 25.
I am authorized to state that MR. JUSTICE GROVES and MR. JUSTICE LEE join in the foregoing.
People v. Cole, 39 Colo. App. 323, 570 P.2d 8 (1977).
“Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of coun-
That determination may be waived by the defendant. Crim. P. 11(b)(6); section 16-7-207(2)(f), C.R.S. 1973. Nonetheless, as a practical matter, it is unlikely that a defendant, when told by the judge who holds the power to send him to prison or grant him probation, that he must admit to certain facts in order to have his plea accepted, will refuse and thus risk rejection of the plea bargain.
Crim. P. 48(b). See also section 18-1-405, C.R.S. 1973.