(dissenting). I dissent.
I agree that a defendant’s testimony from a prior trial may generally be admitted at a subsequent trial for the same offense on the theory that once defendant has voluntarily waived his or her privilege against self-incrimination that waiver cannot be revoked in future proceedings in the same case. Harrison v United States, 392 US 219, 222; 88 S Ct 2008; 20 L Ed 2d 1047 (1968). The exception to this rule, as announced in Harrison, occurs where a defendant’s testimony at the earlier proceeding was prompted or impelled by illegal evidence. Id. In determining whether testimony from a prior trial should be excluded at a subsequent trial under the exception announced in Harrison, this Court has, prior to today, focused on the reasons that prompted the defendant to testify in the first place.
In People v Gardner, 122 Mich App 20, 22-24; 329 NW2d 518 (1982), defendant’s first conviction *136was reversed by this Court due to defense counsel’s improper representation of both defendant and codefendant. At the second trial on remand, defendant did not testify but the prosecution was allowed to introduce defendant’s testimony from the first trial as part of its case-in-chief. On defendant’s second appeal, we affirmed his conviction on the ground that testimony from the first trial was not prompted by his first attorney’s ineffective assistance in jointly representing codefendant but rather, was "an attempt to convince the jury that he was guilty” of a lesser crime than charged. We concluded that, because the ineffective assistance of counsel rendered in the first trial did not taint defendant’s prior testimony, it was admissible at the second trial.
In People v Thompson, 97 Mich App 319, 321-323; 293 NW2d 812 (1980), the defendant’s first conviction was reversed because of an instructional error. Again, defendant did not testify at the second trial but his testimony from the first trial was admitted as part of the prosecution’s casein-chief. On appeal, we found the Harrison exception inapplicable because "defendant’s decision to testify at this first trial was motivated by the strength of the lawful evidence which had been presented by the prosecution rather than by the court’s refusal to instruct on lesser offenses”. 97 Mich App 322.
In my view, the instant case presents precisely the kind of situation alluded to but not presented in Gardner and Thompson. While I cannot say for certain what defendant’s motives were in testifying at the first trial, it is obvious that his wife’s testimony was by far the strongest evidence adduced against him. Guadalupe Armentero was the prosecution’s chief witness; absent her testimony, the prosectuion’s case was primarily circumstan*137tial and involved a credibility contest between defendant’s statement to the police and the testimony of Arturo Aguilar. Given these circumstances, as well as the defendant’s attempts to exclude Ms. Armentero’s testimony on the basis of marital privilege, I am persuaded that defendant was motivated to testify at the first trial directly because of his wife’s very damaging and improperly admitted testimony.
The majority holds that, although defendant’s testimony may have been prompted by the introduction of his wife’s testimony, which was improperly admitted, her testimony was "legal” and not "illegal” in the constitutional sense, and was only "technically inadmissible due to general policies of state statutory or common law”. The majority thus holds that only where defendant’s prior testimony is prompted by evidence obtained in violation of defendant’s constitutional rights must it be excluded at a subsequent trial on the basis of Harrison.
I believe that the exception announced in Harrison should also apply where defendant’s testimony is prompted by evidence admitted in contravention of his or her constitutional rights. It is anomalous that a defendant whose testimony is offered because of his attorney’s ineffective assistance will be considered to have waived his constitutional right to remain silent if that attorney’s ineffectiveness is rooted in statutory or common law rather than in constitutional law. In this case, Guadalupe Armentero’s testimony at the first trial was admitted in violation of defendant’s constitutional right to be represented by effective legal counsel. But for the violation of that constitutional right, Guadalupe Armentero’s testimony would not have been admitted at the first trial and defendant presumably would not have testified. Since defendant’s *138testimony at the first trial was likely prompted or impelled by evidence admitted solely because of his attorney’s ineffective representation, I would hold that the admission of portions of his testimony at the second trial requires reversal of his conviction.
The fact that the trial court excised much of defendant’s former testimony so that what was admitted was consistent with defendant’s police statement does not render the admission of the same testimony harmless. It is the testimony itself and the loss of defendant’s constitutional right to remain silent that is at issue in this case. Moreover, defendant’s statement to the police was relatively brief and did not include the detail provided by his former testimony, thus rendering the testimony more than merely cumulative. In fact, the prosecution relied extensively in closing argument on defendant’s former testimony by contrasting it with the testimony of 11-year-old Arturo Aguilar and thus challenging its credibitlity.
I would reverse.