Concurring and Dissenting Opinion
DeBruler, J.I concur with the majority’s excellent analysis of the issues involved in a pre-trial confrontation between a witness and an accused which occurs without benefit of counsel. However, I must dissent from the majority’s conclusion that the assumed error in this case was harmless.
Assuming arguendo as the majority opinion does that the in-court identification was tainted by the patently illegal pretrial lineup, this conviction cannot be saved by excluding the *90tainted evidence and finding that there is sufficient evidence left in the case to sustain a conviction. The United States Supreme Court in Chapman v. California (1967), 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, did apply the doctrine of harmless error to errors of constitutional dimension, but carefully limited that doctrine to avoid a complete gutting of the Bill of Rights. The Supreme Court in Chapman, supra, rejected the California Supreme Court’s affirmance of the conviction on the grounds that the other evidence in the case was overwhelming, and adopted the approach taken in Fahy v. Connecticut (1963), 375 U. S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171, where it was said:
“The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction?” 375 U. S. at 86-87.
And the Court in Chapman continued:
“There is little, if any, difference between our statement in Fahy v. State of Connecticut about- ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a Federal Constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”
This test for harmless error bears little resemblance to the test utilized in the majority opinion, which, apparently, would exclude the illegal evidence and apply a straight forward sufficiency test to the remaining evidence. Such a test would vitiate the constitutional protections safeguarded by our exclusionary rules.
In this case, the majority would allow this conviction to stand on the uncorroborated testimony of an accomplice witness. Such a case, while admittedly sufficient as a matter of *91law, is among the weakest and most suspicious cases known to our law. As one source points out:
“The facts that the testimony of accomplices is not of the most satisfactory character and that it is attended with serious infirmities are matters recognized by the decisions and are too obvious and well understood to call for extended exposition. Testimony of an accomplice has been held to be fraught with weakness due to the effect of fear, threats, hostility, motives, or hope of leniency. The consideration of the infirmities of this kind of testimony goes to the credibility of the evidence, and the law requires that such testimony be closely scrutinized and accepted with caution. From Crown political prosecutions, and before, to recent prison campt inquisitions, a long history of human frailty and governmental overreaching for conviction has justified distrust in accomplice testimony. It has been said that a skeptical approach to accomplice testimony is a mark of the fair administration of justice.” 30 AM. JUR. 2d § 1149.
I believe that there is substantially more than a reasonable possibility that the identification contributed to this verdict. Therefore, I agree with Justice Prentice that the proper disposition of this case is a remand in order to determine whether or not the in-court identification was tainted by the pre-trial identification.