(dissenting). In a football game, a forward pass is “intercepted” when a member of the opposing team, uninvited and unwelcome, comes between the passer and the intended receiver and grabs the pigskin. Is it also “intercepted” when it is relayed or thrown to a teammate, with the full consent and cooperation of either passer or receiver or both ?
In answering affirmatively an evidentiary equivalent of this gridiron-oriented query, the majority ignores the distinction between the recording of an oral conversation *445by or on behalf of a party to it and the uninvited surveillance of a private conversation by an outsider. Others have not, including the United States Supreme Court,1 the American Bar Association advisory committee on the police function,2 and law review contributors.3
*446The distinction between a participant’s recording and an outsider’s purloining of a private conversation is significant. It is the uninvited surveillance of the outsider that is the subject of federal 4 and state 5 regulatory measures, and United States Supreme Court decisions finding constitutional limitations to “bugging” or “wiretapping” without the consent of any of the parties on the line. The same court, highest in the land, has made clear that, as to constitutional or statutory attack, the party to an oral conversation need not rely upon memory alone,6 and may transcribe or record the contents of a telephone conversation had with another person.7 This *447he may do in a variety of ways, including holding the phone away from his ear so that someone can hear what is being said,8 having the wife or secretary listen on an extension,9 or by use of a recording device attached to the phone.10 When he is entitled to testify as to the content of such conversation, in the language of the American Bar Association commentary, “. . . there can be no valid objection to the use of an overhearing or *448recording device, and the introduction of its product at trial.11
As to the use of such recorded corroboration during the case-in-chief, the majority reaches a contrary conclusion by making the recording of the conversation by or for a participant the exact equivalent of electronic surveillance by an outsider. This is painting a mule to resemble a zebra, and then going zebra hunting. But paint does not change the mule into a zebra.
The appellant housing official, accused of soliciting a bribe, sought to have the recording of his conversation with the contractor barred on constitutional grounds. The majority concedes, almost reluctantly, that the ground was cut from under such contention by the recent United States Supreme Court decision, reversing a federal court of appeals and finding no constitutional barrier to introduction of a recording of a conversation, identity and accuracy established, in a bribery case.12 That the person at the other end of the line was “wired for sound” created no constitutional bar to receiving into evidence the recorded version of the conversation, recorded with consent of one of the parties to it.13
*449Nor is it contended by anyone that the Wisconsin Electronic Surveillance Law makes unlawful the recording of a conversation with the consent of a participant in such conversation. That could hardly be claimed where the Wisconsin statute (sec. 968.31 (2)) specifically provides :
“It is not unlawful under ss. 968.28 to 968.38: . . .
“(b) For a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”
The exception or exemption exactly describes the situation in the case before us. Whether it is considered that the police officer acted as agent for the contractor or whether the contractor did no more than give consent for the recording of his conversation with the housing official, the record here requires the finding that the recording made is entirely legal and specifically excluded from the surveillance control statute. However, the majority concludes that while the procedure followed is specifically declared legal and proper, the legislature intended only that the participant in a conversation may record it, not use it. He may make a recording, but it may not be used as evidence of what was actually said during the conversation recorded even though it clearly is the best evidence of what was said and by whom.14 If he *450intends to use the record of what transpired to corroborate his testimony or exonerate himself from charge or suspicion of wrongdoing, he must secure court authorization in advance for recording what he said and what was said to him.15 Of course, he can follow this suggested procedure only if a major felony is suspected, or likely to be established.16 If he had reason to believe that the prospective caller will do no more than threaten his life or make obscene remarks to his wife, he cannot be given court approval in advance, and the record made is not admissible as evidence in any court proceeding. Such strange and strained construction is not to be found in the law. It has to be read into it. As has been held in construing the similar federal statute,17 after which the Wisconsin law was patterned, the writer would find *451no statutory basis for holding inadmissible as evidence a record of a conversation made by or on behalf or with the consent of a participant in such conversation.
So the writer dissents — finding the statute involved not to apply to the recording here made by a police officer with full consent of the contractor who claims the appellant solicited a bribe from him. However, the writer concurs with the majority holding that, if the statute is somehow to be construed to ban such admission into evidence as part of the case-in-chief of the state in this case, it does not bar the use of such recorded evidence.
This is an extension of the approach followed in the case where this court limited the use of prior inconsistent statements as substantive evidence to impeachment situations, requiring that, “. . . the witness has testified to the same events in a contrary manner in the present proceedings.” 18 In thus limiting the use of prior inconsistent statements to when the party testifies in a contrary manner, this court anticipated the approach taken by the United States Supreme Court as to constitutionally defective confessions.19
In Harris, because no warning of a right to appointed counsel was given before questions were asked, statements made by the defendant to the police were constitutionally inadmissible. The United States Supreme Court ruled in Harris that:
“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” 20
*452What was applied to a constitutionally inadmissible admission made to police, i.e., permitting its use for impeachment purposes, applies as well to a recording of a conversation with consent of a participant, constitutionally admissible and statutorily declared to be not illegal for the reason well stated in Harris:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . 21
While finding no sound reason for not admitting into evidence the challenged recording at any stage of the proceeding, the writer concurs in the majority’s modifying the request for writ of prohibition to include only admission into evidence during the presentation of the case-in-chief. For here, as in Harris, use of the recorded conversation for impeachment purposes — on the issue of credibility — is to do no more than to “. . . utilize the traditional truth-testing devices of the adversary process . . .” 22 and to recognize that:
“The function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. . . .” 23
The writer is authorized to state that Mr. Justice Leo B. Hanley joins in this dissent.
“. . . We thus deal here not with surreptitious surveillance of a private conversation by an outsider . . . but . . . with the use by one party of a device to make an accurate record of a conversation about which that party later testified. . . .” Osborn v. United States (1966), 385 U. S. 323, 327, 87 Sup. Ct. 429, 17 L. Ed. 2d 394 (holding admissible in evidence).
“. . . the law must always seek to obtain the best and most reliable evidence. Traditionally, that evidence has consisted mainly of the testimony of witnesses who saw or heard what they later reveal in court. No man knows better, however, the fallibility of human testimony than that man who is trained in the law. . . . [E]very effort should be made to record the conversations through the best available means. For a recording will reproduce the very words spoken with all the added significance that comes from inflection, emphasis and other aspects of oral speech. . . . The goal of finding the truth in the criminal trial demands no less. The defendant, too, has a stake in the best evidence being presented to the court and jury. Thus, recording as such ‘involves no “eavesdropping” whatever in any proper sense of that term.’ Lopez v. United States, 373 U. S. 427, 439. [(1963), 83 Sup. Ct. 1381, 10 L. Ed. 2d 462] It should not be unthinkingly placed in the same category with wiretapping or bugging. . . .” American Bar Association, Standards Relating to Electronic Surveillance, sec. 4. 1 a, pages 126, 127.
“. . . Every time we engage in a conversation we run the risk that the other party may betray us. He may reveal what we have said. . . . Such risks are inherent in human relationships. They are in essence no different from the risk that the person in whom we confide has arranged to record or broadcast what we say .... This is a distinction in degree but not in essence.
“Where a conversation is recorded or transmitted without the consent of any participant, an entirely different set of concepts must apply. . . .” (Emphasis supplied.) The Wiretapping-Eavesdropping Problem: A Defense Counsel’s View, Edward Bennett Williams, 44 Minn. L. Rev. (1960), 855, 866. See also: Schwartz, On Current Proposals to Legalize Wiretapping, 103 U. Pa. L. Rev. (1954), 157, 166, 167.
The Omnibus Crime Control and Safe Streets Act of 1968, 18 USCA 2510, et seq.
Wisconsin Electronic Surveillance Law, eh. 427, Laws of 1969, secs. 968.27 to 968.33, Stats.
“Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument could justify excluding an accurate version of a conversation that the agent could testify to from memory. [The trustworthiness of the recording is not challenged.] We think the risk that petitioner took in offering a bribe to Davis [an internal revenue inspector] fairly included the risk that the offer would he accurately reproduced in court, whether by faultless memory or mechanical recording.” Lopez v. United States (1963), 373 U. S. 427, 439, 83 Sup. Ct. 1381, 10 L. Ed. 2d 462.
“In previous cases, which are undisturbed by today’s decision, the Court has upheld, as reasonable under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v. United States, 385 U. S. 293 (1966); (2) by a recording device hidden on the person of such an informant, Lopez v. United States, 373 U. S. 427 (1963); Osborn v. United States, 385 U. S. 323 (1966); and (3) by a policeman listening to the secret micro-wave transmissions of an agent conversing with the defendant in another location, On Lee v. United States, 343 U. S. 747 (1952). When one man speaks to *447another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. ... It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. . . .” Katz v. United States (1967), 389 U. S. 347, 363, 88 Sup. Ct. 507, 19 L. Ed. 2d 576. (Mr. Justice White, concurring.)
“. . . The conduct of the party would differ in no way if instead of repeating the message he held out his handset so that another could hear out of it. We see no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose. . . . The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. . . .” Rathbun v. United States (1957), 355 U. S. 107, 110, 111, 78 Sup. Ct. 161, 2 L. Ed. 2d 134.
“The case is thus quite similar to Rathbun v. United States, 355 U. S. 107, in which we sustained against statutory attack the admission in evidence of the testimony of a policeman as to a conversation he overheard on an extension telephone with the consent of a party to the conversation.” Lopez v. United States, supra, at page 439.
. . Indeed this case involves no ‘eavesdropping’ whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device . . . neither saw nor heard more than the agent himself.” Lopez v. United States, supra, at page 439. (Where an internal revenue inspector, equipped with a pocket wire recorder, recorded his conversation with a bribe-offering cabaret owner.)
American Bar Association, Standards Relating to Electronic Surveillance, sec. 4.1 a at page 127.
“. . . If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.” United States v. White (1971), 401 U. S. 745, 752, 91 Sup. Ct. 1122, 28 L. Ed. 2d 453.
“Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters *449on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant’s utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. . . .” Id. at page 752.
“. . . An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress *450unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.” Id. at page 753.
Sec. 968.28, Stats., provides: “The attorney general together with the district attorney of any county may approve a request of an investigative or law enforcement officer to apply to the circuit court in the county where the interception is to take place for an order authorizing or approving the interception of wire or oral communications. . . .”
Sec. 968.28, Stats., provides: "... The authorization shall be permitted only when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, commercial gambling, bribery, extortion and dealing in narcotics or dangerous drugs or any conspiracy to commit any of the foregoing offenses.”
“. . . Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of section 605, interception, has not occurred.” (Emphasis in original.) Rathbun v. United States, supra, at page 111.
Gelhaar v. State (1969), 41 Wis. 2d 230, 241, 163 N. W. 2d 609.
Harris v. New York (1971), 401 U. S. 222, 91 Sup. Ct. 643, 28 L. Ed. 2d 1.
Id. at page 226.
Id. at page 225.
Id. at page 225.
Lopez v. United States, supra, at page 440.