dissenting: I respectfully dissent. In my judgment, the opinion of the majority has charted a course for the courts of Kansas which not only violates constitutional principles but is contrary to express provisions of the Kansas statutes. The effect of the majority opinion will be to seriously impair, if not to destroy, the constitutional privilege against self-incrimination as provided for in the federal and Kansas Constitutions.
In the United States, the privilege against self-incrimination has been a part of our law since the time of the adoption of the Constitution of the United States. It provides in the Fifth Amendment that no person shall be compelled in any criminal case to be a witness against himself. It has been stated that the fundamental purpose of the Fifth Amendment privilege against self-incrimination is the preservation of an adversary system of criminal justice. By its very terms, the privilege against self-incrimination is available in criminal cases, and this has been uniformly recognized by the courts. The United States Supreme Court has stated that the privilege against self-incrimination should be liberally construed, and has held that the privilege extends to the states through the Fourteenth Amendment.
The privilege against self-incrimination is included in Section 10 of the Kansas Bill of Rights. It has also been enacted into statutory law by the legislature in K.S.A. 60-423(a) which provides as follows:
*55“(a) Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify.” (Emphasis supplied.)
But the privilege is not restricted to an accused at his own trial. In addition to being a right granted to an accused, the privilege against self-incrimination is given to any person called as a witness in any legal action by K.S.A. 60-425, which provides:
“60-425. Self-incrimination. Subject to K.S.A. 60-423 and 60-437, every natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any governmental agency or division thereof any matter that will incriminate such person.” (Emphasis supplied.)
Incrimination is defined at K.S.A. 60-424 as follows:
“60-424. Definition of incrimination. A matter will incriminate a person within the meaning of this article if it constitutes, or forms an essential part of, or, taken in connection with other matters disclosed, is a basis for a reasonable inference of such a violation of the laws of this state as to subject the person to liability to punishment therefor, unless he or she has become for any reason permanently immune from punishment for such violation.”
The constitutional and statutory right of a person not to testify against himself, either as the accused or as a witness, is thus one of the privileges recognized in the Kansas Code of Civil Procedure which is also enforced in criminal cases (K.S.A. 60-402). Contrary to what the majority state, K.S.A. 60-439 specifically declares that, where any privilege is exercised either by an accused or by a witness as to any particular matter, the judge or counsel may not comment thereon. Furthermore, that section provides that no presumption shall arise with respect to the exercise of any privilege, and the trier of fact may not draw any adverse inference therefrom. There is nothing in that statute which indicates that the scope of the statute is restricted to the defendant’s own prosecution, but rather the only logical inference is that no comment can be made and no adverse inference can be drawn from any invocation of the Fifth Amendment.
In Jenkins v. Anderson, 447 U.S. 231, 239, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980), which is discussed at length in the majority opinion and later in this opinion, the Court stated that “[e]ach jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.” By the above-mentioned statutes, the Kansas legislature *56has decided the issue in this case by providing that no comment can be made on the exercise of the privilege and no adverse inference can be drawn from it. Thus, even if the majority opinion were correct about the constitutional issue, which it is not as is shown later herein, the legislature has decided that in this jurisdiction a prior exercise of the privilege against self-incrimination may not be used as a basis for impeachment in the cross-examination of a defendant in a criminal action.
This case is before this court on a question reserved pursuant to K.S.A. 22-3602(b)(3). The question reserved for determination by the State is this: Whether the trial court improperly prohibited the State from cross-examining defendant, Clemens Nott, relative to his invocation of the Fifth Amendment to the United States Constitution in the earlier trial of two codefendants? The facts in the case are undisputed and are set forth with specificity in the majority opinion. Five individuals including the defendant were charged with burglary and theft involving a high school. Defendant Nott was advised by the arresting officer of his Miranda rights at the time of his arrest on April 27, 1982. He made no statement to the arresting officer. Under both federal and Kansas law, it is constitutionally impermissible for a state prosecutor to impeach a defendant’s alibi defense which is told for the first time at trial by using post-arrest silence, after the defendant has been advised of his constitutional rights by the Miranda warning. Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976); State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976); State v. Clark, 223 Kan. 83, 574 P.2d 174 (1977). Under those cases, it would clearly have been improper for the trial court to have permitted the prosecutor to cross-examine defendant Nott because he remained silent and refused to discuss the case with the arresting officer.
Following his arrest, defendant, being indigent, had counsel appointed to represent him. His appointed counsel advised him of his constitutional right to remain silent and specifically advised defendant not to testify at the trial of his codefendants. However, defendant Nott was subpoenaed to appear at the trial as a defense witness. The obvious purpose of this procedure was to have Nott exercise his privilege against self-incrimination in front of the jury for whatever benefit that might bring the other defendants.
*57The majority opinion implies that a defendant has the right to require a codefendant to testify, if that codefendant’s trial has been severed, subject to the codefendant being able to invoke the Fifth Amendment on the witness stand in response to specific questions. This, however, is in direct conflict with and impliedly overrules State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982), and State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983), and is inconsistent with what the majority itself recognizes later in the opinion. Those cases and the majority opinion clearly recognize that a codefendant whose trial is severed retains the right not to be called as a witness in his codefendant’s trial. See United States v. Barber, 442 F.2d 517, 529, n. 22 (3d Cir. 1971). K.S.A. 60-423 clearly recognizes this right. See State v. Crumm, 232 Kan. at 257-61, where the court rejected the argument that the Sixth Amendment right to confrontation requires that a defendant be able to call an alleged coparticipant for the purpose of having that person invoke the Fifth Amendment before the jury. The court in Crumm quoted with approval Com. v. Hesketh, 386 Mass. 153, 434 N.E.2d 1238 (1982), a Massachusetts case:
“ ‘Immediately before trial, defense counsel informed the trial judge that he planned to call Roberts as a defense witness. Defense counsel told the judge that it was his understanding that Roberts might invoke the privilege against self-incrimination. He said that he planned to call Roberts as a witness before the jury. Counsel for the defendant told the judge that he had a right to have Roberts invoke the Fifth Amendment privilege before the jury. . . .
“ ‘After the prosecution completed its case, the judge conducted a voir dire outside the presence of the jury to determine whether Roberts intended to invoke the privilege against self-incrimination and whether the privilege was properly invoked. If Roberts planned to take the Fifth Amendment, the judge ruled that Roberts would not be allowed to do so in front of the jury, and that Roberts could not be called as a witness merely to invoke the privilege.
“ ‘Defense counsel agreed that the privilege was properly invoked. However, he objected to that portion of the ruling which did not permit Roberts to invoke the privilege in front of the jury. Citing art. 12 of the Declaration of Rights of the Massachusetts Constitution, and the Sixth Amendment to the United States Constitution, the defendant’s attorney argued that Hesketh had a right to have Roberts invoke the privilege against self-incrimination in front of the jury. The judge did not agree and denied the defendant’s request to have Roberts invoke the privilege before the jury. There was no error.
“[T]he right to confront and to cross-examine [witnesses] is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Commonwealth v. Francis, 375 Mass. 211, 214, 375 *58N.E.2d 1221 cert. denied, 439 U.S. 872, 99 S.Ct. 205, 58 L.Ed.2d 185 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045-1046, 35 L.Ed.2d 297 (1973), and cases cited. “The Fifth Amendment privilege against self-incrimination, when properly invoked, is clearly one of those interests.” Commonwealth v. Francis, supra. Therefore, the Sixth Amendment does not give the defendant the right to have a witness invoke the privilege against self-incrimination in front of the jury.
“ ‘The Sixth Amendment “must be considered in light of its purpose, namely to produce testimony for the defendant. . . . Calling a witness who will refuse to testify does not fulfill [that] purpose.” United States v. Roberts, 503 F.2d 598, 600 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); Dodd v. State, 236 Ga. 572, 576, 224 S.E.2d 408 (1976). Further, a witness’s reliance on the Fifth Amendment “may have a disproportionate impact upon the minds of the jurors.” People v. Thomas, 51 N.Y.2d 466, 472 [434 N.Y.S.2d 941, 415 N.E.2d 931] (1980). “The jury may think it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by the . . . fact that it is a form of evidence not subject to cross-examination.” Bowles v. United States, 439 F.2d 536, 541-542 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). Because the impact of a witness’s refusal to testify outweighs its probative value, “[i]t is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense.” Bowles v. United States, supra at 541, United States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974).’ 434 N.E.2d at 1241-1242.” (Emphasis supplied.) 232 Kan. at 259-60.
This court in Crumrn adopted that rationale, holding that forbidding defense counsel to ask questions which the witness would refuse to answer did not deprive defendant of his Sixth Amendment right to call witnesses on his behalf.
Therefore, as even the majority opinion recognizes in the opinion in some places, a defendant cannot compel a codefendant to testify over his objection regardless of whether his trial has been severed. Thus, it is clear, at least in this state, that once a person has been charged with a crime, he becomes the accused and has the right to remain silent, and cannot be compelled to testify in any criminal action in regard to that crime.
The record in this case shows that, when Nott was called to the stand to testify in the absence of his counsel, the trial court immediately inquired whether there was any Fifth Amendment problem if Nott testified. Counsel for the other defendants indicated that there was. The judge indicated then that he should advise the defendant that he did not have to testify. The court required Nott to take the stand. Nott stated to the court that his *59attorney had advised him not to answer any questions and that he rested on his Fifth Amendment right not to offer any testimony. The judge then stated that he would not allow any questions if Nott refused to answer any questions by exercising his rights under the Fifth Amendment. The court, however, did permit defense counsel to ask a few questions, but defendant refused to answer any questions and he was permitted to leave the witness stand.
Thereafter, Nott’s lawyer, Mr. Patton, came to the courtroom. Nott was again placed on the stand and asked questions which were clearly incriminating. Patton stated to the court that he had advised his client not to answer the questions and that Nott should take the Fifth Amendment. Patton told the court that was going to be his advice to Nott as to any further questions which might be asked him. At that point, the defendant was permitted to step down by the court. As State v. Crumm and State v. Lashley clearly hold, it was improper even for Nott to be put on the stand and “compelled” to invoke the Fifth Amendment.
At the trial in this case, defendant Nott took the witness stand in his own defense. The State advised the court and defense counsel that it intended to cross-examine Nott as to his taking the Fifth Amendment in the Whitaker-Kirk trial. The trial court treated the matter as a motion in limine and prohibited the prosecutor from any inquiry regarding Nott’s refusal to testify in the Whitaker-Kirk trial, two days previously. Nott was acquitted of the charges by the jury. The State appealed on the question reserved.
The majority concedes that, under Doyle, Mims, and Clark, the State could not have cross-examined Nott as to his silence at the time of his arrest because, as the Court in Doyle noted, silence in the wake of Miranda warnings may be nothing more than the arrestee’s exercise of these rights, and thus, every post-arrest silence is insolubly ambiguous. The question immediately arises: Why should the rule be different under the circumstances of this case? The defendant Nott was advised by the police officer, then by his appointed counsel, and finally by the judge in the prior trial that he had a constitutional privilege to remain silent. How can Nott’s privilege to remain silent be destroyed by the fact that, following his Miranda warning by the arresting officer, Nott was advised by his own counsel and by a *60trial judge that he had the same privilege. Does this mean that a defendant has a right to rely on a Miranda warning given by an arresting officer, but has no right to rely on advice of his counsel or the advice of a district judge? This simply cannot be the law, and there is not a single decision in this country that declares this is the law. In fact, all of the decisions handed down after Doyle are expressly to the contrary.
In one of our own cases we held that the failure of a defendant to take the stand as a witness at a prior unrelated trial may not be used to impeach him at the time of his own trial. In State v. Dodson, 222 Kan. 519, 565 P.2d 291 (1977), the defendant asserted his Fifth Amendment privilege against self-incrimination while testifying in a prior unrelated trial. On appeal, it was held that it was error for the trial court to permit the prosecutor to cross-examine the defendant regarding his assertion of the Fifth Amendment privilege against self-incrimination at the prior trial. This was held to be error, not only on the basis of Doyle, Mims, and State v. Heath, 222 Kan. 50, 563 P.2d 418 (1977), but also on the basis of K.S.A. 60-425 and K.S.A. 60-439. The court, however, found that the error was harmless error under the facts of the case and affirmed the conviction. The majority opinion in this case makes no attempt to explain our decision in Dodson which is clearly a case in point on the issue before us.
The majority opinion cites Grunewald v. United States, 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963 (1957). In Grünewald, the defendant Halperin invoked his Fifth Amendment privilege when called as a witness before a grand jury. At his trial, he answered the same questions he had previously refused to answer. The trial court permitted cross-examination of the defendant about his prior refusal to testify for impeachment purposes. The United States Supreme Court held that such cross-examination was improper. In the opinion, the court noted that defendant Halperin’s claim of the Fifth Amendment privilege before the grand jury was wholly consistent with his innocence. In other words, the refusal of a defendant to testify on the basis of the Fifth Amendment was not inconsistent with his exculpatory testimony subsequently made at the defendant’s trial.
In this regard, the majority argues that the exercise by Nott of his Fifth Amendment privilege was inconsistent with his later alibi testimony and thus could be used to impeach him. This *61seems clearly contrary to the holding in Grünewald. It is important to see what the majority is really saying in making this argument. Simply stated, the majority is attempting to apply retroactively the defendant’s waiver of his Fifth Amendment rights at his own trial to the invocation of the Fifth Amendment at the Whitaker-Kirk trial, and then turn that invocation into testimony which can later be used to impeach him. In Doyle, the court held that every post-arrest silence is insolubly ambiguous, and thus no adverse inference can be drawn from that silence. This point was further recognized in State v. Crumm, where the court stated that the “probative value of the event [exercise of the Fifth Amendment] is almost entirely undercut by the . . . fact that it is a form of evidence not subject to cross-examination.” 232 Kan. at 260. See also State v. Lashley, Syl. ¶ 4. Since the prosecutor in the Whitaker-Kirk trial had no right to cross-examine Nott, no logical inference can possibly be drawn from his invocation of the Fifth Amendment, and thus no plausible inconsistency arises with his subsequent alibi testimony.
The problem presented in this case has arisen because of confusing language in the cases as to the continuing viability of the decision in Raffel v. United States, 271 U.S. 494, 70 L.Ed. 1054, 46 S.Ct. 566, decided in 1926. Raffel is discussed in the majority opinion and holds, in substance, that a defendant’s silence by failing to testify at his first trial could be used against him in his second trial. In Grünewald, the four concurring justices expressed the view that Raffel should be specifically overruled. Even the majority of the court questioned whether Raffel was good law in light of Johnson v. United States, 318 U.S. 189, 87 L.Ed. 704, 63 S.Ct. 549 (1943), in which the majority opinion stated that when a trial court grants the claim of privilege but allows it to be used against the accused to his prejudice, the Court cannot disregard the matter. The Court stated that such procedure has such potentialities of oppressive use that the Court could not sanction its use.
In Stewart v. United States, 366 U.S. 1, 6 L.Ed. 84, 81 S.Ct. 941 (1961), the court stated:
“[T]hat in no case has this Court intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial.” p. 5.
*62The Court in Stewart rejected the government’s argument that Raffel allowed the prosecutor to impeach the defendant by use of his silence at previous trials.
Our own Court of Appeals has questioned whether Raffel is good law in this state after Doyle and Mims. See State v. Blevins, 7 Kan. App. 2d 378, 642 P.2d 136, rev. denied 231 Kan. 801 (1982).
In the majority opinion, it is stated that the precise issue presented in this case has not been settled. The courts of other jurisdictions have addressed the identical issue raised in this case and have uniformly adopted the rationale of Stewart, Doyle, and Grünewald and rejected the applicability of Raffel. In Messier v. State, 428 P.2d 338 (Okla. Crim. App. 1967), the court held that when the defendant took the stand at her trial, the State could not cross-examine her about her assertion of her Fifth Amendment privilege at a previous trial of one of her codefendants. Relying on Grünewald, the Oklahoma court held that it was prejudicial error for the trial judge to permit such cross-examination. The court quoted from Johnson, as follows:
“ ‘The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.’ ” 428 P.2d at 342. (Emphasis supplied.)
In the opinion, the court noted that Raffel had been impliedly overruled by Johnson and Grünewald.
The Supreme Court of Pennsylvania considered the same basic issue in Matter of Silverberg, 459 Pa. 107, 327 A.2d 106 (1974). That case involved an attorney disciplinary proceeding in which two attorneys had claimed the privilege against self-incrimination in a prior preliminary proceeding. The court held that the Fifth Amendment right against self-incrimination applies to state disciplinary proceedings against an attorney and that the accuseds’ constitutional rights against self-incrimination were violated when their prior claims of privilege were introduced to impeach their credibility at a later hearing.
In Dean v. Commonwealth, 209 Va. 666, 166 S.E.2d 228 (1969), the defendant was cross-examined by the prosecutor about his invocation of the Fifth Amendment privilege at a previous trial of his codefendant. The Supreme Court of Virginia *63held that this was reversible error and in violation of defendant’s constitutional right against self-incrimination. The court refused to follow the reasoning of Raffel and instead adopted the reasoning of the concurring opinion in Grünewald. The court held that the Fifth Amendment precludes the prosecution from using an assertion of the privilege against self-incrimination to discredit or convict the person who asserted it.
From the line of cases cited above, it has now been clearly-established that a defendant’s prior exercise of his Fifth Amendment privilege, either at a preliminary hearing in his own case or in the separate trial of a codefendant, is not considered to be inconsistent with testimony he offers at his own trial and that cross-examination of the defendant by the prosecutor as to the prior exercise of the privilege is a violation of the defendant’s constitutional right against self-incrimination.
The majority also attempts to justify its decision by relying upon language in Fletcher v. Weir, 455 U.S. 603, 71 L.Ed.2d 490, 102 S.Ct. 1309 (1982). It is clear that Fletcher is not applicable at all to the factual circumstances of this case. Fletcher simply holds that a defendant’s silence prior to the giving of the Miranda warnings may, if relevant, be used against him for impeachment purposes at his trial. The Court concluded that, since the defendant’s silence was not induced by the government, defendant’s silence could be used for impeachment purposes. The Court, however, made it clear that it did not retreat from its ruling in Doyle. The Court explicitly stated that, where the government has informed the defendant that he has a right to remain silent, it is a violation of due process for the government to attempt to use that silence against him, even if only for impeachment purposes.
The majority also relies upon Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980), to support its position. Like Fletcher, however, that case is not applicable to the case at hand because it only involves the question whether prearrest silence can be used for impeachment purposes. It does not involve, as this case does, a post-arrest situation where a defendant actually charged with a crime invoked his Fifth Amendment privilege on advice of counsel. The Court in Jenkins, as in Fletcher, clearly recognized this distinction and did not retreat in any way from its holding in Doyle. The Court stated:
*64“Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, ‘ “it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.” ’ ” 447 U.S. at 239-40.
In the accompanying footnote in Jenkins, the Court makes clear that the rule is no different in a case where a trial court assures the defendant that he has a right to invoke the Fifth Amendment privilege:
“The Court reached a similar result in Johnson v. United States, 318 U.S. 189 [, 87 L.Ed.2d 704, 63 S.Ct. 549] (1943). A trial judge mistakenly told a defendant that he could claim the privilege against self-incrimination. After the defendant invoked the privilege, the prosecutor commented on the defendant’s refusal to speak. Under its supervisory power, this Court held that the prosecutor’s comments constituted error because the trial court had assured the defendant that he might claim the protections of the Fifth Amendment. The Court stated that ‘[e]lementary fairness requires that an accused should not be misled on that score.” 447 U.S. at 240, n. 6.
Thus, it is clear that where the government has assured the accused that he has a right to remain silent or to invoke the Fifth Amendment privilege, that silence or exercise of the privilege cannot later be used against him for any purpose..
As noted above, in the present case it cannot reasonably be argued that defendant Nott was not informed of his right to remain silent or that the government did not induce his silence, after he had been arrested and accused of the crime. First, it is undisputed that Nott was given the Miranda warnings by the arresting officer. Second, his court-appointed attorney, James Patton, instructed him prior to the Whitaker-Kirk trial to invoke his Fifth Amendment privilege. Third, the trial judge in the Whitaker-Kirk trial specifically admonished defendant that he did not have to answer any questions until his attorney was present. When Nott’s attorney arrived in the courtroom, he immediately instructed Nott to assert his Fifth Amendment right and not to testify. Thus, the defendant was instructed on at least four occasions that he had a privilege to remain silent. As noted before, it was highly improper for the trial court to require Nott to take the witness stand and invoke the Fifth Amendment. It is difficult to see how the majority can say that the government did not, at least in part, induce defendant Nott to remain silent.
*65Down through the years, the courts have recognized that a person’s right to remain silent should not be subject to any sanction or penalty, and that a prosecutor’s impeachment of a defendant because of a prior exercise of the privilege would, in effect, destroy the privilege. In Spevack v. Klein, 385 U.S. 511, 17 L.Ed.2d 574, 87 S.Ct. 625 (1967), the Supreme Court unequivocally stated that the state cannot penalize or condition the exercise of the privilege against self-incrimination. It used the following language:
“ ‘The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.’ [Malloy v. Hogan], 378 U.S. at 8.
“In this context ‘penalty’ is not restricted to fine or imprisonment. It means, as we said in Griffin v. California, 380 U.S. 609 [, 14 L.Ed.2d 106, 85 S.Ct. 1229], the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly.’ . . . What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634-35 [, 29 L.Ed. 746, 6 S.Ct. 524]. . . .
“ ‘It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to he watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’ 116 U.S. at 635.” pp. 514-15. (Emphasis supplied.)
The majority opinion, if followed by the courts of Kansas, will have the effect of bringing about the depreciation, if not destruction, of a basic constitutional right. If a person’s assertion of his Fifth Amendment right to remain silent at the direction of his court-appointed attorney, or as a result of the admonition of a trial judge, can later be used by the prosecutor for impeachment during cross-examination at his trial, that assertion has become “costly,” and the State has penalized that person for his exercise of a fundamental constitutional right. The effect of the majority decision is essentially this: A person charged with a crime has a constitutional and statutory right to remain silent, but, if he exercises that right and remains silent, his silence can later be used to impeach his credibility if he ever takes the stand in his *66defense thereafter. Does not such a rule impose a sanction or penalty on the exercise of a constitutional right? As stated by Justice Black in his concurring opinion in Grünewald:
“It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.” 353 U.S. at 425-26.
The Fifth Amendment states' that no person “shall . . . be compelled in any criminal case to be a witness against himself.” By requiring the defendant to invoke the Fifth Amendment before a jury and then allowing that to be used later against that defendant, the majority has in effect compelled the defendant to be a witness against himself, which is directly contrary to the language of the privilege he sought to invoke. The majority opinion also refuses to follow the Kansas statutory provisions discussed above. For these reasons, I must respectfully dissent. I would uphold the trial court’s ruling that an accused’s assertion of his Fifth Amendment privilege at a trial of a codefendant cannot be used to impeach him when he later takes the stand and testifies at his own trial. The State’s appeal on the question reserved should be denied.
Miller, J., joins the foregoing dissenting opinion. Holmes, J., dissenting.