(dissenting). In my opinion the constitutional error of admitting at trial evidence of defendant’s silence during custodial interrogation was prejudicial. Applying the Reichhoff test, 76 Wis.2d at 381, we focus on several factors: frequency of the error, the nature of the state’s evidence against the defendant, and the nature of the defense.
It is true that the prosecutor here elicited testimonial reference to defendant’s post-custodial silence on only one occasion, and there was apparently no comment upon that evidence during his closing argument. This *448may not be, however, “a ease where the prosecution asked one witness, on one occasion, whether the defendant professed innocence at the time of arrest.” Reichhoff, 76 Wis. at 381. The prosecutor’s eliciting of testimony a moment earlier, from the same witness, relating to defendant’s pre-arrest failure to contact the police when they merely wished to discuss the crime with him, may have been designed initially to cast the defendant before the jury as a person with something to hide. The subsequent testimony relating to his refusal to answer questions after arrest very likely detracted further from any presumed noninvolvement in the offense charged.
As in Reichhoff, evidence against this defendant was circumstantial, and was also sufficient to support his conviction, as this Court expressly held in its earlier review of this case. Unlike Reichhoff, however, where the circumstantial evidence of guilt was strong, 76 Wis. 2d at 383-384 (Hanley, J. dissenting), the circumstantial evidence here was thin — as the trial court below noted on two occasions.1
The defendant here did not testify and, indeed, presented no evidence other than certification of his brother’s plea of guilty to the identical charges. Unlike Reich-hoff, therefore, this trial was not a credibility contest.
*449However, because of the nature of the evidence of guilt, the erroneously admitted evidence obtains a special importance. As the United States Supreme Court has stated, it is likely that a jury will draw a “strong negative inference . . . from the fact that the defendant remained silent at the time of his arrest.” United States v. Hale, 422 U.S. 171, 180 (1975). Such evidence has a “significant potential for prejudice,” precisely because a jury may view it as a “badge of guilt.” Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968); accord, Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765, 767 (1972). Because the properly admitted evidence of defendant’s guilt was weak, the likelihood of prejudice from the error in this case may very well assume the status of certainty. At the very least, “there is a reasonable possibility that the improperly admitted evidence contributed to (defendant’s) conviction.” Schneble v. Florida, 405 U.S. 427, 432 (1972). That inescapable conclusion renders the error here prejudicial.
The comment made by the trial court to the jury immediately after the error in this case was not sufficient to render the error harmless. The trial court did not sustain defendant’s objection to the improper testimony. There was no admonition to the jury, either at that time or during final instructions, that it should disregard the testimony. Instead, the trial court merely explained to the jury that “the defendant (was) under no obligation to talk with the officer (and that) (t)he defendant was perfectly within his rights in refusing to talk to the officer.” The most that can fairly be said of this comment is that it gave the jury one possible explanation for defendant’s silence during custodial interrogation— a proper invocation of his constitutional privilege. But even given the caveat that defendant had a right to remain silent, his reason for so doing remained, from the jury’s perspective, “insolubly ambiguous.” Doyle v. Ohio, *450supra, 426 U.S. at 617. The explanation of the trial court did not foreclose the jury from inferring that defendant’s reliance upon his rights was evidence of his desire to conceal his guilt. Had the trial court taken immediate steps to prohibit that negative inference by forcefully instructing the jury that the testimony could not be considered for any purpose at all, the error might very well have been harmless. Without such action, however, the trial court’s comment to the jury cannot be viewed as correcting the error. As in Reichhoff, the evidence of this defendant’s custodial silence “not only had low probative value but also had a high potential for great prejudice.” 76 Wis.2d at 382.
The constitutional error in this case was clear. The state’s case against the defendant was weak as the Attorney General admits. The trial court’s comment to the jury was insufficient to eliminate the potential prejudice from the erroneously admitted evidence. For these reasons, I would grant the motion by the state for confession of error and remand the case for new trial.
I am authorized to state that Justice Nathan S. Hef-fernan and Justice Shirley S. Abrahamson join me in this dissent.
When denying defendant’s motion for dismissal at the close of the state’s case, the court stated;
“Well, I will agree this is a very close case. This is a touch and go deal, and yet I am going to let this case go to the jury.”
Later, in denying defendant’s post-verdict motion for new trial, the court said:
“Well, I say now as I said at that time, that this is, it was a thin one, no doubt about that, but it is the old story of what probative value circumstantial evidence has. This man was not seen in the church, he was not apprehended in the church. And that many, many crimes are disposed of on that basis, conviction based upon the state’s case based entirely upon circumstantial evidence, and that was true here.”