concurring in the result:
The majority has treated this case as requiring resolution of the broad question of whether “an admission by the defendant at an earlier hearing in a contempt proceeding” is admissible in a subsequent criminal action. The narrow question presented is whether prejudicial error resulted, in a criminal case, from the trial court’s admission of the defendant’s prior statements regarding the income listed on his 1973 W-2 tax forms.
The result in this case can be traced to the United States Supreme Court’s decision in Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). In Garner, the prosecution introduced, over the defendant’s objection, the defendant’s tax returns in a non-tax case. The Supreme Court held that since the defendant had voluntarily disclosed the information on his tax returns, instead of claiming his privilege against self-incrimination, the admission of the returns against the defendant did not violate his Fifth Amendment privilege because the evidence has not been “compelled” by the government. The Supreme Court stated that: “The information revealed in the preparation and filing of an income tax return is, for purposes of Fifth Amendment analysis, the testimony of a ‘witness’. . . .
“In summary, we conclude that since Garner made disclosures instead of claiming the privilege on his tax returns, his disclosures were not compelled incriminations. He therefore was foreclosed from invoking the privilege when such information was later introduced as evidence against him in a criminal prosecution.”
Garner makes it unnecessary to reach the broader question addressed by the majority opinion. Since objections based on Fifth Amendment grounds could not have succeeded had the tax returns themselves been introduced, no prejudicial error resulted from the introduction of the defendant’s statements in this case.
Were it necessary to reach the question decided by the majority opinion, the focus should be on whether the prior statements were made voluntarily. The general rule that the privilege must be asserted to be considered operates unless factors exist which deny the individual a free choice to admit, deny, or refuse to answer. Garner v. United States, supra.
Colorado has long recognized that the protection against self-incrimination operates to protect against compulsory (non-voluntary) testimony in proceedings other than criminal trials. See Early v. People, 142 Colo. 462, 352 P.2d 112 (1960), cert. denied, 364 U.S. 847, 81 S.Ct. 90, 5 L.Ed.2d 70 (1960); People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956); People v. McPhail, 118 Colo. 478, 197 P.2d 315 (1948); People v. Clifford, 105 Colo. 316, 98 P.2d 272 (1940); Radinsky v. People, 66 Colo. 179, 180 P. 88 (1919); Tuttle v. People, 33 Colo. 243, *24879 P. 1035 (1905). In Tuttle v. People, supra, the court declared:
“[T]he important question to determine in cases of this character, is, was the statement voluntary? If this question can be answered in the affirmative, then the statement is clearly admissible on a principle, the soundness of which is not disputed, but if not voluntary or if obtained by any degree of coercion, thén it must be rejected. No hard-and-fast-rule can be formulated which would serve as the test in every instance, but each case must be determined upon its own circumstances. The mere fact that an oath is or is not administered cannot, ordinarily, of itself serve as a true test. Some persons might believe that after service of a subpoena and the administration of an oath they would be compelled to answer all questions, while others would not be so influenced. Surrounding circumstances must necessarily, in almost every case, be taken into consideration in determining whether a statement was voluntary or not, and that question ought to be determined from the facts and not by the application of any technical rule. . . .”
Voluntary statements made in prior proceedings are admissible in subsequent criminal proceedings, but, nonetheless, the defendant retains his privilege against self-incrimination. See the dissent of Judge Kelly in People v. Keener, 38 Colo. App. 198, 559 P.2d 243 (1976), for an excellent analysis of the additional safeguards provided by Article II, Section 12 of the Colorado Constitution.
In United States v. Miranti, 253 F.2d 135 (2d Cir. 1958), the court declared:
“[I]t is well established that a waiver of the privilege in one proceeding does not affect the rights of a witness or the accused in another independent proceeding. In re Neff, 3 Cir., 206 F.2d 149, 36 A.L.R.2d 1398; Poretto v. United States, 5 Cir., 196 F.2d 392; United States v. Field, 2 Cir., 193 F.2d 109. See 8 Wigmore on Evidence § 2276 (3d Ed. 1940). This disclosure of information to the FBI (here in the nature of a confession), while admissible as evidence in a subsequent trial of the witness, if voluntarily made, does not constitute a waiver of the witness’ privilege against self-incrimination even in response to the same questions before a grand jury. It can be argued that reiteration of the prior voluntary statement is not incriminating because that statement would be admissible against the witness at trial. But reiteration adds to the credibility of the statement, United States v. Malone, D.C.N.D.Cal., 111 F.Supp. 37, 39, and if construed as a waiver could lead to additional questions requiring answers which further implicate the witness.”
The prior testimony in this case concerned information which the defendant had voluntarily disclosed in his tax returns. Furthermore, the defendant’s prior testimony was read by the court reporter. Therefore, the defendant’s privilege against self-incrimination was not violated.
*249I would affirm the judgment on the narrow basis set forth above.