(concurring in result and dissenting). In this ease, we decide inter alia a basic and important principle of law to which I fully adhere: that at trial the prosecution may not comment upon or pose questions to a defendant concerning his silence or his failure to disclose exculpatory information to the police at or about the time of his arrest. Such questioning will not be permitted even where the State seeks to establish defendant’s reticence for the sole purpose of undermining his credibility after he has testified at trial to an exculpatory story.
The majority of this Court predicates this holding upon the fundamental privilege against self-incrimination. Ante at 113. The Chief Justice, speaking for himself and Justice Mountain, also grounds this decision upon basic principles of evidence law. Ante at 116. To the extent that the several opinions of this Court reach the result noted above, I am in accord with them.1 I differ from these opinions, however, in the following important respects.
*122Pirst, I cannot agree with the majority holding that the prejudice accruing from the impermissible questioning of Deatore does not “rub off” on Mallon. Ante at 106-107. It is well known that juries often experience difficulty in distinguishing between impeachment testimony and testimony which goes to substantive issues in the case. Por example, jurors frequently confuse the impeachment of a testifying defendant with direct evidence of the defendant’s guilt, rather than viewing it as evidence which discredits his alibi without any independent bearing on his guilt. In such circumstances, cautionary instructions are usually considered inadequate to clarify this distinction and cure the erroneous association. State v. Boone, 66 N. J. 38, 48 (1974); State v. Miller, 67 N. J. 229, 240 (1975) (Pashman, J., dissenting) and cases cited therein. Because Deatore and Mallon are accomplices, evidence which tends to establish Deatore’s guilt will certainly incriminate Mallon. In this regard, the prejudicial effect which the impermissible cross-examination has on the defendant-witness will have an identical effect on the non-testifying defendant. If both defendants are found guilty, it would be manifestly unjust to allow the improperly impeached defendant (Deatore) to have a new trial, while affording no relief whatsoever to his equally prejudiced co-defendant (Mallon). Por these reasons, I would hold that where codefendants are tried together and are accomplices or where their guilt is otherwise inextricably related, the prejudice arising from illegal questioning as to the silence of one defendant will in most instances “rub off” on the other defendant.
*123Since the majority has on other .grounds ordered a new trial for both Deatore and Mallon, ante at 104-106, I find it unnecessary to dissent with respect to the Court’s disposition of this case.
Second, I wish to emphatically dissociate myself from those portions of the majority opinion which impliedly support the view adopted by the United States Supreme Court in Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) that statements taken from a defendant in violation of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) are admissible for the limited purpose of impeachment where the defendant chooses to testify at trial. As I discussed at length in my dissenting opinion in State v. Miller, supra, I firmly believe that Harris v. New York, supra, was wrongly decided on both technical and policy grounds and for these reasons should not have been adopted as a matter of State law. State v. Miller, supra, 67 N. J. at 237, 242 (Pashman, J., dissenting). I continue to adhere to this view.2
*124In his opinion, the Chief Justice, speaking for a majority of this Court, observes that some courts have found an “inescapable” analogy between Harris and cases similar to the instant case. Citing Harris for the proposition that when a defendant elects to testify at trial he becomes subject to all of the traditional truth-testing devices of the adversary *125process,3 such courts have allowed prosecutors to question a defendant as to his failure to disclose exculpatory information by remaining silent at the time of his arrest. See e. g., United States v. Ramirez, 441 F. 2d 950 (5 Cir. 1971), cert. den., 404 U. S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971).
I note with approval that in rejecting this view, the Court has adopted portions of the dissent in State v. Miller, supra, and has expressly stated:
We may add that we do not interpret Harris v. New York, supra, to indicate a different result in the situation before us, but even if it should, we choose to impose a higher standard as a matter of state law. [Ante at 116].
I have no quarrel with this statement. I strongly urged this court in State v. Miller, supra, 67 N. J. at 242 (Pashman, J., dissenting) “to adopt as a matter of State law more rigorous rules for the protection of the individual, . . . .”
However, as a result of my position in State v. Miller, supra, I must dissociate myself from that portion of the majority opinion which seeks to distinguish the situation in State v. Miller, supra, and its companion case, State v. Davis, 67 N. J. 222 (1975), from that of the instant case.
We emphasize that this position goes beyond a situation where a defendant did make a statement at or near arrest, which is inconsistent with his trial testimony.....[Ante at 108],
Apparently, the majority chooses to fully protect those defendants who remain silent at or near the time of their arrest, but fails to provide comparable protection to those de*126fendants in similar circumstances who make statements to the police without full knowledge of their constitutional rights and under the coercive pressures of police interrogation which were fully considered in Miranda. I find this distinction to be illogical and unpersuasive.
For similar reasons, I wish to dissociate myself from the majority’s reference to State v. Kimbrough, 109 N. J. Super. 57 (App. Div. 1970) and its analogizing that ease to State v. Burt, 59 N. J. 156 (1971), cert. den. 404 U. S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972). See ante at 118-119. I distinguish these two cases on the grounds that the latter involved conduct rather than pure speech, while the former concerned statements issued by defendants without the requisite showing that Miranda warnings had been given. Consequently, the former is more analogous to State v. Miller, supra, from which I dissented, than to State v. Burt, supra.
Finally, while I agree with the Chief Justice that the principle of law which we decide today derives from the law of evidence as well as from the privilege against self-incrimination, I nonetheless disagree with the implication that, were the fact of a defendant’s silence at the time of his arrest found to be “relevant” to the issue of his veracity (as, for instance, if it were found to be “totally inconsistent” with the defendant’s trial testimony,) then this evidence might be admissible. Compare United States v. Hale, 422 U. S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99, 104 (1975) with Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). As already noted, I believe that any questioning which infringes upon a defendant’s fundamental privilege against self-incrimination is improper, whether it is directed toward substantive issues in the case or is limited to the issue of defendant’s credibility. This is equally true whether the interrogation concerns a defendant’s silence or concerns inculpatory statements obtained from him in violation of Miranda.
Nevertheless, principles of evidence law do buttress our conclusion. It is a fundamental rule of evidence that even *127if certain evidence is clearly relevant, it may still be excluded where its probative value is outweighed by the risk of undue prejudice. See Evid. R. 4 (N. J. S. A. 2A.-84A-16). Although, as Justice Clifford and Judge Conford correctly observe, the task of weighing the probative value of proffered evidence against the risk of prejudice is "normally . . . left to administration of the trial judge” (ante at 128, emphasis supplied), where such fundamental rights as the privilege against self-incrimination are involved, this Court may and should determine, as a matter of law, that the tainted evidence is inadmissible. I would, therefore, conclude that the relevance of a defendant’s silence at or near the time of his arrest, which is at best only equivocal and ambiguous (see United States v. Hale, supra, 422 U. S. at 176-178, 95 S. Ct. at 2136-2138, 45 L. Ed. 2d at 104^106), is always outweighed by the potential for prejudice where the privilege against self-incrimination is implicated. In this sense, I find that the principles of evidence law and the right to be free from self-incrimination are inextricably related and are equally relevant to the decision in this case.
To the extent that the opinion of Justice Sullivan, in which Justice Schreiber joins, relies upon neither ground and would reject this important principle altogether, I must totally and emphatically part ways with it.
Arguing that where a defendant testifies as to an exculpatory story at trial, the prosecution should be allowed to question a defendant as to his decision to remain silent at the time of his arrest, Justice Sullivan seeks to distinguish evidence which concerns a defendant’s veracity from evidence which relates to a substantive issue in the case. In making this distinction, he also impliedly argues that whenever a defendant testifies at trial and thereby puts his credibility in issue, all evidence probative of his veracity should be admissible. This position ignores the fact, noted elsewhere (see footnote 3 infra), that evidence which is otherwise probative as to a witness’ credibility is frequently excluded on the grounds that it contravenes some other important policy. See, e. g., State v. Boone, 66 N. J. 38 (1974). My Brothers’ position also fails to recognize that where testimony will infringe upon a defendant’s privilege against self-incrimination, our rules of evidence make no exception permitting the introduction of such testimony for the limited purpose of testing a defendant’s credibility. See State v. Miller, 67 N. J. 229, 242 — 43 (1975) (Pashman, J., dissenting). *122Finally, as Justice Sullivan, himself correctly observes, “[a] defendant has a right to remain silent when arrested or at trial, and no adverse inference can be drawn therefrom.” Ante at 119 (emphasis supplied). In order to be used effectively in undermining a defendant’s credibility, the fact that a defendant chose to remain silent at the time of his arrest must give rise to an “adverse inference” which burdens his right to remain silent just as much as if the fact of his silence were used to establish a substantive issue in the case.
In State v. Miller, supra, I argued, for example, that authorizing use of illegally obtained testimony even for the limited purpose of testing a defendant’s credibility would severely burden the defendant’s right to remain free from self-incrimination, would significantly undermine the deterrent effect of Miranda and would make the courts “a vehicle for government wrongdoing.” Id., 67 N. J. at 238-40 (Pashman, J., dissenting). In this regard, I note with approval that the California Supreme Court recently voted to overrule its decision in People v. Nudd, 12 Cal. 3d 204, 115 Cal. Rptr. 372, 524 P. 2d 844 (Sup. Ct. 1974), which had adopted the Harris rationale and thereby has held, as a matter of state law, that the privilege against self-incrimination forbids impeachment of a defendant with an inculpatory statement obtained from him in violation of the safeguards set forth in Miranda. People v. Disbrow, 16 Cal. 3d 101, 127 Cal. Rptr. 360, 545 P. 2d 272 (Sup. Ct. 1976). In a concurring opinion, in which he explained why he changed his vote from that entered in People v. Nudd, supra, Chief Justice Wright made the following comments which are relevant to the grounds cited above with respect to State v. Miller, supra-.
I concur. As I joined the majority in People v. Nudd (1974) 12 Cal. 3d 204, 115 Cal. Rptr. 372, 524 P. 2d 844, which was *124filed on July 31, 1974, and X now join the majority in overruling that opinion, I believe a brief explanation of my change in position on the principal issue raised in Harris v. New Tork (1971) 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1, is warranted.' When I signed Hudd I was motivated primarily by my abhorrence of the possibility of perjured testimony although as a long-time trial judge I well recognized that defendants in criminal actions were prone to commit a “little” perjury when their life or liberty was at stake. I, of course, did not condone such conduct. Further, I could not at that time conceive that evidence obtained in incidents such as the present flagrant violation of Miranda v. Arizona (1966) 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 and People v. Fioritto (1968) 68 Cal. 2d 714, 68 Cal. Rptr. 817, 441 P. 2d 626, would ever be presented to a trier of fact. Miranda articulates a sound and workable exclusionary rule which is still the law of this land. I now recognize that rule is eviscerated when police officers can ignore the duty to give the warnings or, as in the instant case, violate Miranda and Fioritto requirements knowing full well that the illegally obtained statements may be admissible for impeachment purposes if a defendant elects to testify.
Moreover, as the majority opinion so convincingly sets forth, adherence to Harris and Nudd will force revival of numerous, elusive tests of voluntariness to determine if statements obtained in violation of Miranda are admissible or inadmissible for purposes of impeachment. A host of appellate opinions on this imprecise test would soon be spawned. Miranda eliminated the need for such inquiries and I believe that salutary effect should not be thwarted.
Finally, I find that fundamental fairness to individuals accused of the commission of a public offense demands that Harris-Nudd be rejected. Regardless of the precision of instructions limiting the trier of fact to consideration of the illegally obtained statements solely for impeachment purposes, it is simply unrealistic to believe that such statements will not be considered by the trier of fact as substantive evidence of guilt. I now recognize that this manifestly prejudicial and unfair use of the illegally obtained evidence would transform Miranda into a rule of form rather than one of substance. Such a transformation should not occur in California.
In State v. Miller, supra, I sought to show the inherent fallacy of this proposition by noting that the State’s right to make use of “traditional truth-testing devices” is not absolute: “It is a common phenomenon in the law that evidence probative as to substantive issues or the credibility of a witness is excluded because its admission would conflict with other important policies.” [67 N J. at 241; emphasis supplied]. See, e. g., Evid. R. 26, Evid. R. 28, Evid. R. 29, Evid. R. 34, Evid. R. 52 and State v. Boone, supra.