Temporarily Assigned, concurring. We concur in the results reached in the opinion of the Chief Justice. The present opinion is prompted only by the partial resting in that opinion of the disapproval of comment or cross-examination by the State as to a testifying defendant’s silence upon arrest, upon its asserted probative insufficiency. We thoroughly agree with and join in the opinion to the extent that it forbids comment or cross-examination of the kind mentioned on the ground of the erosion or depreciation of the privilege against self-incrimination. That ground of the ruling is strong enough to sustain it. Adding the justification of insufficiency of probative weight is unwarranted on the intrinsic merits of the proposition and may have the untoward effect of weakening by analogy the vital role of the trial judge in ruling on *128matters of evidential weight and relevance in other contexts, civil and criminal.
Pules of evidence in relation to probative weight or relevance are normally wisely left to administration of the trial judge. “ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” Evid. B. 1(2) (emphasis added). Our rules provide for the safety-valve of discretionary exclusion by the trial judge of evidence whose probative value is substantially outweighed by the risk of undue consumption of time, undue prejudice or confusion of the jury Evid. B. 4.
Concededly there may well be attendant circumstances reducing to a level of minimal probative weight the silence of an accused in the face of police assertions of criminal conduct. This might be said to be the case, for example, when such silence follows administration of Miranda warnings to the defendant. See State v. Griffin, 120 N. J. Super. 13, 15 (App. Div. 1972), certif. den., 62 N. J. 73 (1973). So, too, where the defendant’s prior silence is in the context of an express assertion of his privilege before an investigating grand jury. Grunewold v. United States, 353 U. S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957). But none of the foregoing is to gainsay the fundamentally established principle of admissibility of proof that an accusatory statement was made in the presence and hearing of an accused and that his response or absence thereof was such as to justify the inference that he agreed with or “adopted” the accusation. McCormiclc on Evidence (2d ed 1972) p. 353. As there stated (Hid.) :
“Underlying the rule is the assumption that human nature prompts an innocent man to deny false accusations and consequently a failure to deny a particular accusation tends to prove belief in the truth of the accusation.”
See also Adamson v. California, 332 U. S. 46, 60, 67 S. Ct. 1672, 91 L. Ed. 2d 1903 (1947) (Frankfurter, J., concurring) .
*129True it is that, in view of Eifth Amendment and Miranda implications, the evidence principle stated has been hedged about with qualifications in the criminal context, McCormick, op. cit., 353-356, particularly by the confinement of the use of such silence upon arrest to impeachment of the credibility of the defendant as a witness-. See the opinion of Justice (then Judge) Sullivan in State v. Burt, 107 N. J. Super. 390, 393, aff’d o.b. 59 N. J. 156 (1971), cert. den. 404 U. S. 1047, 92 S. Ct. 728, 30 L. Ed,. 2d 735 (1972).
But insofar as probative weight, as such, is concerned, and until the spate of recent litigation on the point following the decision in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), silence as well as inconsistent statements by an accused upon arrest have long been regarded as admissible on the issue of the accused’s credibility in testifying to exculpatory facts. This is so whether the matter is considered from the standpoint of trustworthiness, inconsistency, reliability or probative value of such silence. See the cogent expression to this effect in the opinion of Judge Hunter in Agnellino v. State of New Jersey, 493 F. 2d 714, 722 (3d Cir. 1974).
The high value we attach to the preservation of the privilege against self-incrimination in this State by exclusion of evidence of the type here under discussion to attack a testifying defendant’s credibility would be accentuated by our frank recognition that in so doing we are sacrificing to some extent a legitimate and useful fact-finding tool in the criminal trial process.
We are of course aware that a majority of the United States Supreme Court chose to arrive at the same result this court does in the present case, in United States v. Hale, 422 U. S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), by the approach of deprecating the evidential value of silence in the indicated circumstances rather than on the constitutional or policy grounds of vindicating the privilege. We can only say, with deference, that the opinion of the court does not make out a *130credible case in that regard as against the tests of common human experience and logic reflected by the evidence rule expressed by the McCormick text quoted from above.
Sullivan, Clifford and Schreiber, J. J., and Conford, P. J. A. D., concurring in the result.
Pashman, J., concurring in the result and dissenting.
For affirmance — Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford — 7.
For reversal — Hone.