concurring in part and dissenting in part:
Before President Benjamin Harrison appointed him to the Supreme Court of the United States a hundred and one years ago, Justice David Brewer served on the Supreme Court of Kansas. As a member of that tribunal, he wrote the opinion of the court in State v. Grebe, 17 Kan. 458 (1877). In Grebe, the trial judge had instructed the jury that an inference unfavorable to the defendant may arise “where evidence which would refute or explain certain facts and circumstances of a grave and suspicious nature is peculiarly within the defendant’s knowledge and reach, and he makes no effort to procure that testimony.” Id. at 459. In upholding the propriety of that instruction, the court said:
It seems to us that the clause is only a recognition of a well-understood principle of human action. The instinct of self-*236preservation impels one in peril of the penitentiary to produce whatever testimony he may have to deliver him from such peril. Every man will do what he can to shield himself from the disgrace of a conviction of crime, and the burden of punishment. We all know this. We all expect it. Whenever then a fact is shown which tends to prove crime upon a defendant, and any explanation of such facts is in the nature of the case peculiarly within his knowledge and reach, a failure to offer an explanation must tend to create a belief that none exists. Will not a man, who can, explain that which unexplained will stamp him a criminal and consign him to the felon’s cell?
Id.
This “undoubted general principle,” II J. Wigmore, Evidence § 286, at 199 (Chad-bourn ed. 1979), is at the heart of the present case, in which the question of guilt or innocence turned entirely on appellant's assertion of self-defense. In cross-examination and during closing argument, the prosecutor attempted to establish that, after Manning’s death, Allen did not act like an innocent man and did not attempt to assemble information which would then have been available to him alone and which, if it existed, would arguably have supported his claim of self-defense. Because I believe that the prosecutor had the right and obligation to argue just that, and because in my view Allen suffered no prejudice, I respectfully dissent from the reversal of Allen’s conviction.
I
Allen admitted at trial that he killed Manning but claimed to have done so to protect his own life.1 Once Allen had introduced that issue into the case, the government was obliged to prove beyond a reasonable doubt that Allen had not acted in self-defense. Manning was dead, and his version of the encounter was not available to the jury. In order to contest Allen’s proffered justification, the prosecutor was obliged to probe Allen’s account to determine if it was consistent with the claim of self-defense. The prosecutor attempted to demonstrate that although Allen’s words at trial supported the claim of innocence,2 his conduct at the time of Manning’s death was more consistent with guilt.
The principal issue at trial was Allen’s intent. The question presented to the jury was whether Allen shot and killed Manning with criminal intent or in self-defense. Allen’s intent could not “be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind.” Criminal Jury Instructions for the District of Columbia, No. 3.02 (3d ed. 1978). Instead, his state of mind could best be inferred “from the surrounding circumstances.” Id.
*237It cannot be gainsaid that, in probing Allen’s intent, the prosecutor incidentally brought to the jury’s attention the fact that Allen did not undertake efforts to collect or preserve evidence arguably relevant to self-defense, an issue as to which the government, not Allen, bore the burden of proof. In my opinion, however, the trial judge acted reasonably in permitting the prosecutor to do so. My colleagues say that the government’s claim that it focused on Allen’s failure to preserve evidence after the shooting, and that it did not propose a “missing evidence” inference, “undermines the rationale behind the law in this jurisdiction.” My view is the exact converse; the extension of the “missing evidence” doctrine to reach the facts here undermines the prosecution’s right to conduct a thorough exploration and exposition of relevant facts and impairs the evenhanded balance that is essential to adversarial litigation.3
II
Over defense objection, the judge permitted the prosecutor to cross-examine Allen in detail about his conduct after Manning’s death. Did Allen look for Gerard after the shooting? Did he ask his sister to keep the van from which he had shot Manning? Did he attempt to preserve a shell casing which may have “popped out” after he fired the fatal shot? Did he and Gerard search the van to see if there was anything in it that could support his claim that he had acted in self-defense? Did he ask Gerard to preserve the weapon with which he (Allen) had killed Manning? Did he request Gerard to keep in touch “so he could say what really happened in the van?” In his rebuttal argument, the prosecutor reemphasized that if Allen had truly acted in self-defense he would have “scoured that van to get that shell casing and to preserve the gun” and would have “tried to keep Gerard or Gerald, or know his last name.” He argued that Allen “did nothing, nothing to preserve what would support him.” A similar theme appeared in the prosecutor’s initial argument as well.
Allen contends on appeal that “the inference the government was urging was that appellant’s failure to produce the gun, the shell casing or Gerard created the presumption that the [evidence] if produced would be unfavorable.” I cannot agree that the prosecutor was urging such a presumption, either directly or implicitly. Rather, the prosecutor’s focus was on the plausibility of Allen’s claim of self-defense in light of his pre-arrest conduct, and not on any “missing witness” or “missing evidence” inference.
During cross-examination, the prosecutor sought to show that if Allen had killed Manning justifiably in self-defense, then it would have been logical for him to do what he could to enable the authorities to find out what really happened. Specifically, the prosecutor suggested that an innocent man would have kept the gun, searched the car for clues, told his sister and brother-in-law about Manning’s death, attempted with their help to preserve the van and its contents, and requested Gerard to stay in touch. Similarly, in his closing argument, the prosecutor focused on what Allen did after the killing. He did not argue or even mention Gerard’s absence from the trial. As Judge Weisberg put it, such cross-examination 4 “shows the jury something about whether [Allen’s] conduct is consistent with [that of] a man who tells the story he’s telling here today.”
*238As my colleagues correctly suggest, the “missing witness” and “missing evidence” principle is designed to avoid the creation of evidence from nonevidence. To put it in the vernacular, the prosecutor — or, indeed, any attorney — should not be allowed to mislead the jury by trying to make something out of nothing. In my opinion, however, that wise policy is not significantly implicated here. The government was not making something out of nothing. Rather, as the trial judge recognized, the prosecutor was asking the jury to draw reasonable inferences from Allen’s conduct at a time, if ever there was one, when actions spoke louder than words.
Allen argues, not implausibly, that there were legitimate reasons for his failure to preserve evidence immediately after the killing.5 He had every opportunity, however, to explain these reasons to the jury.6 The overall character of Allen’s conduct at the time — his failure to report Manning’sdeath or to preserve the scene for investigators, his flight and his assumption of an assumed identity — were all relevant to an informed assessment of his state of mind. The prosecutor’s concentration on this .theme during cross-examination and in closing argument did not, in my view, run afoul of the “missing witness” or “missing evidence” doctrine.
It is axiomatic that the trial judge, who is on the scene and has an opportunity to obtain a “feel” for the case which is not available to an appellate court reviewing a paper record, is invested with wide latitude in determining the permissible limits of cross-examination and of closing argument. In my opinion, Allen has failed to show abuse of that discretion.
Ill
Allen contends that the prosecutor imper-missibly shifted the burden of proof to him with respect to the issue of self-defense. He says that this occurred both during cross-examination and in closing argument. I find this contention to be altogether unpersuasive.
Early in his instructions, the judge explained the presumption of innocence. He told the jury that the government had the burden to prove Allen’s guilt beyond a reasonable doubt. He specifically stated that this burden of proof never shifts. Judge Weisberg again referred to the requirement of proof beyond a reasonable doubt on each occasion that he explained the elements of a particular offense.7 Addressing the question of self-defense, the judge said:
*239The defendant is not required to prove that he acted in self-defense. Where evidence of self-defense is present, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the government has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, it is your duty to find him not guilty. And that applies to all the levels of homicide that you may consider, depending on what you find as the facts of this case.
Given the clarity of these instructions and the ease with which any reasonable person could understand them, I would apply here Justice Holmes’ observation for the court in Graham v. United States, 231 U.S. 474, 481, 34 S.Ct. 148, 151-52, 58 L.Ed. 319 (1913), that “[i]t would be absurd to upset a verdict upon a speculation that the jury did not do their duty and follow the instructions of the court.” See also Coates v. United States, 558 A.2d 1148, 1150 (D.C.1989).
Judge Weisberg also instructed the jurors that “it is your duty to accept the law as I state it to you.” Accordingly, even if the prosecutor had argued that Allen had the burden of proof with respect to self-defense, one would presume that the jury applied the law as stated by the judge, not by the prosecutor. In any event, the prosecutor presented no such contention.8 On the contrary, he began his rebuttal argument by agreeing that
[Defense counsel] is right. The government has to prove and you have to be satisfied beyond a reasonable doubt as to every element of the offenses of first-degree murder or of second-degree murder or voluntary manslaughter while armed. And you have to be satisfied beyond a reasonable doubt, if there’s evidence of self-defense, that he didn’t act in self-defense.
(Emphasis added.) Since the judge, the prosecutor and the defense attorney9 were all in agreement on this undisputed point of law, I am at a loss to understand how the jurors could possibly have been misled as to which party had the burden of proof. Probative evidence10 should not be excluded because of “crabbed notions of relevance or excessive mistrust of juries.” Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir.1987) (Posner, J.).
It is, of course, true that the prosecutor had the burden of proof with respect to the issue of self-defense and that his cross-examination and closing argument revealed the lack of evidence presented by the defense on that subject. That is by no means equivalent, however, to an attempt to “shift” the burden. As Professor Wigmore has written,
it is true that the burden is on the prosecution ... and that the accused is not required by any rule of law to produce evidence. But nevertheless he runs the risk of an [adverse] inference from non-production.
VIII Wigmore, supra, § 2273, at 450.11 In McCowan v. United States, 458 A.2d 1191, *2401197 (D.C.1983) — a case not discussed by the majority — this court resolved a very similar issue as follows:
Appellant also claims that the prosecutor erroneously represented to the jury during argument that he bore a burden of proof regarding his inability to explain his whereabouts on July 8. Our reading of the record indicates, to the contrary, that the prosecutor’s argument was directed at the unreasonableness of appellant’s limited attempts to ascertain his whereabouts. It did not assert, explicitly or implicitly, that appellant was burdened with proving his whereabouts. Cf. Whalen v. United States, 379 A.2d 1152, 1165 (D.C.1977) (prosecutor’s closing is proper where it refers to appellant’s inability, prior to trial, to explain his whereabouts to a co-worker and does not refer to appellant’s failure to testify at trial), rev’d on other grounds, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715. (1980). * * * * * *
The court, moreover, instructed the jury several times that appellant bore no burden of proof. We presume the jury understood and followed those instructions.
(Citations omitted.) See also United States v. Sensi, 279 U.S.App.D.C. 42, 879 F.2d 888, 899-900 (1989) (prosecutor’s comment that defendant’s testimony was corroborated only by witnesses that he “never produced at this trial” did not shift the burden of proof); United States v. Johnson, 713 F.2d 633, 651 (11th Cir.1983) (prosecutor’s emphasis on defense’s failure to produce evidence to rebut reasonable inference from government’s evidence was proper where prosecutor acknowledged that government bore burden of proof and trial judge so instructed), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984); United States v. Glantz, 810 F.2d 316, 321 (1st Cir.) (prosecutor may comment on defendant’s failure to produce evidence supporting his theory of the case and may attack the weak evidentiary foundation on which the defense rests),12 cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987); United States v. Gotchis, 803 F.2d 74, 79-81 (2d Cir.1986) (prosecutor’s comment that the defendant could have produced but did not produce evidence that he was a cocaine user and that drugs in his possession were not for distribution did not suggest that the defendant had an obligation to produce those witnesses or shift the burden of proof).13
This court has on occasion, most recently in its 2:1 decision in Harris v. United States, 572 A.2d 421, 425 (D.C.1990), pet. for reh. pending, intimated that an argument by the prosecutor about the defense’s failure to present particular evidence may “shift the burden of proof and jeopardize the fairness of appellant’s trial.” Whatever the merits of that suggestion — and, for reasons stated herein, it is one which I think this court should re-examine14 — it *241surely presupposes a violation of the “missing witness” or “missing evidence” rule. Since, in my view, there was no such violation here, the quoted language from Harris does not come into play.
IV
Even if the prosecutor’s allusions to Allen’s conduct after Manning’s death were improper — and I do not think they were — I would nevertheless vote for affirmance, for I am satisfied that any such impropriety was harmless. Surely, the prosecutor’s cross-examination and closing argument did not rise “to the level of serious misconduct which reasonably could be viewed as having swayed the jury.” Arnold v. United States, 511 A.2d 399, 414 (D.C.1986) (quoting Hammill v. United States, 498 A.2d 551, 555 (D.C.1985)).
The trial judge permitted Allen to present evidence regarding his efforts to locate Gerard. Allen also explained his inability to find the gun and the shell casings, pointing out that he did not see the van for approximately two months after the shooting. Thus, on a subject which Allen himself views as collateral or even bogus, see note 4, supra, the jury heard the prosecutor’s questions and arguments and Allen’s sworn testimony.15 Since the trial judge instructed the jury that the testimony of the witnesses was evidence, but that the questions and arguments of counsel were not, and since no explicit “missing witness” or “missing evidence” argument was made, I find it difficult to discern how Allen could have been prejudiced.
The challenged cross-examination and arguments constituted only a small part of the record in a week-long, spiritedly contested trial. My colleagues acknowledge that it was proper for the prosecutor to cross-examine Allen about his flight, his assumed identity, his false statements to the authorities, and his alleged threats to witnesses. It is difficult to escape the conclusion that a reasonable juror would view these aspects of Allen’s conduct after the killing far more gravely than his alleged failure to preserve evidence, which Allen was given the opportunity to, and did, explain.
My colleagues say that the government’s case was not strong on the issue of self-defense. It may be of little consequence that I disagree. The strength of the evidence is more effectively assessed by jurors who were present and had an opportunity to assess the credibility of the witnesses in the flesh-and-blood context of the courtroom than by judges who are compelled to operate in the rarefied atmosphere of appellate review, and who see the printed word rather than the faces of those who told their stories to the jury. Nevertheless, I quote the following from the government’s brief, which in my view characterizes the prosecution evidence16 with reasonable objectivity:
Prior to the shooting, appellant had said he intended to kill Manning. Two eyewitnesses testified about the shooting and related that it occurred in a manner entirely different from that described by appellant. The evidence also showed that appellant fled the scene immediately following the killing and shortly thereafter telephoned Johnson’s apartment to ask about Manning. When he was told that he had killed Manning and that the police were there, appellant hung up. Appellant later fled the District of Columbia to Miami, Florida, and attempted to establish a new identity. When he *242was finally apprehended in Florida, he denied being Claude Allen and denied knowing anything about the killing of Manning.!17! Then, while awaiting trial in the District of Columbia, appellant threatened to harm one of the eyewitnesses and her boyfriend if she testified against appellant.
Allen was substantially impeached. He contradicted himself on a number of issues. In particular, he told an officer that Gerard shot at Manning but testified that Gerard did not. His credibility was further undermined by his admission that he obtained false papers, including a false birth certificate, from an unidentified lawyer for $150. Given these facts and the powerful inference of consciousness of guilt arising from his false protestations of innocence following his apprehension, see note 14, supra, the prosecution's case seems to me to be a good deal stronger than my colleagues suggest.
In Thomas v. United States, 447 A.2d 52, 59 (D.C.1982), this court stated that “where the defendant’s credibility is a key issue and the missing witness inference goes to that credibility, an improper argument or instruction will ordinarily require reversal.” We have, however, appropriately retained some flexibility in this regard. In Lemon v. United States, 564 A.2d 1368 (D.C.1989), for example, the prosecutor made what we characterized as almost a “complete” missing witness argument. Moreover, he did so in part with respect to witnesses who were in the courthouse and available to testify for either side. Nevertheless, we affirmed the defendant’s conviction because the evidence against him was compelling and because
[t]he absence from the witness stand of all but one of the persons who were supposed to have been with [the defendant] on the night of the crime would have been obvious to the jury no matter what the prosecutor said, and the judge correctly instructed the jury that the government had the burden of proof beyond a reasonable doubt and that the defendant had no obligation to prove anything.
Id. at 1376.
With due respect to my colleagues on an issue which often divides the court, I think we should place more trust in the ability of jurors to apply their common sense and good judgment to the case at hand and to base their verdict on the evidence rather than on assertedly improper arguments by attorneys. Professor McCormick has stated, and I agree, that “[i]t is wiser to hold that if an argument on failure to produce proof is fallacious, the remedy is the usual one, namely the answering argument and the jury’s good sense.” E. Cleary, McCormick On Evidence § 272, at 807-08 (3d ed. 1984).
Proportionality is of consummate importance in judicious adjudication. The Mikado’s “object all sublime” to let the punishment fit the crime should apply to prosecu-torial errors as well as to the misdeeds of those who transgress our criminal statutes. In determining whether reversal is proportionate to the alleged violation in this case, we might do well to be guided by the wisdom of Judge Learned Hand. In United States v. Cotter, 60 F.2d 689 (2d Cir.1932), the appellant demanded that his conviction be reversed because the trial judge had declined to instruct the jury to disregard the prosecutor’s argument based on *243the defendant’s failure to call witnesses, In his opinion for the court affirming the conviction, Judge Hand wrote that
[a] judge is not required to intervene here any more than in any other issue of fact. He must indeed, as he always must, keep the prosecution in a criminal case within bounds; ... just as he must keep passion out of the debate and hold the parties to the issues. But he is not charged with correcting their non sequi-turs; the jury are to find these for themselves.
Id. at 692 (emphasis added).
Nor is Judge Hand’s assessment obsolete; as the Supreme Court reiterated in Boyde v. California, — U.S. -, -, 110 S.Ct. 1190, 1200, 108 L.Ed.2d 316 (1990), only a few months ago,
arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation to transcript omitted], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.
(Citations omitted). In this case, as we have noted, the judge made it crystal clear that the defendant did not have to prove anything.
“There being, [in my opinion], no appreciable possibility that the [prosecutor’s allegedly improper tactics] contributed to [Allen’s] conviction, it would be a waste of time and resources, and might imperil justice, to try him all over again.” Helm v. United States, 555 A.2d 465, 469 (D.C.1989). “It is not always so easy for the government to reassemble its witnesses and evidence for a return match, or for witnesses to remember what happened many years ago.” Id. at 469 n. 9.18 Moreover, “the addition of an old case to an overloaded docket requires the deferral of newer ones, in some of which presumptively innocent defendants may be in pretrial detention.” Scott v. United States, 559 A.2d 745, 766 (D.C.1989) (en banc) (concurring opinion). Finally, appellate reversal of a conviction for an alleged error which has played no role in bringing about the judgment — which, in my view, is exactly what has occurred here — “encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).
Men and women are finite beings. Perfection is a rare commodity. Courts should treat as a meaningful guide to judicial analysis, rather than as mere rhetorical flourish, the Supreme Court’s oft-repeated directive that a criminal defendant has a right to a fair trial, not a perfect one. See, e.g., Ross v. Oklahoma, 487 U.S. 81, 91, 108 S.Ct. 2273, 2280, 101 L.Ed.2d 80 (1988), quoted in Dixon v. United States, 565 A.2d 72, 81 (D.C.1989). Believing that Allen received all of the protections to which he was entitled, I would affirm his conviction.19
. Allen’s adherence to his claim of self-defense was less than consistent. In October 1985, following his apprehension in Florida, where he was living under an assumed name, Allen was returned to the District. On the way back to Washington, D.C., he initially told a detective that he did not know anything about Manning's death. Eventually, however, he changed his account and stated that Manning pulled a gun on him, that he shot at Manning, and that Gerard did the same.
On June 6, 1986, Allen entered a plea of guilty to second degree murder and carrying a pistol without a license. The record of the plea is not before us, but Allen obviously made no claim of self-defense, for he was required to admit his guilt before the plea could be accepted. Sentencing was scheduled for July 17, 1986.
While awaiting sentence, Allen wrote two letters to Judge Weisberg. In each, he explained that he was on drugs at the time of the crime and that he was very sorry for what he had done. On each occasion, he asked the judge to be merciful. Although he mentioned in the first of these letters that “I was on drugs and I see that my life was in danger,” he said nothing in either communication about having acted in self-defense or about Manning having shot at him.
On July 28, 1986, through his prior counsel, Allen filed a motion to withdraw his plea of guilty. He asserted that “the decedent, Mr. Samuel Manning, did in fact have a gun on his person on November 13, 1983, and was in fact attempting to use it against the defendant.” Over the government’s objection, Judge Weis-berg granted Allen’s motion to withdraw his plea.
. Defense counsel argued to the jurors that they knew Allen had acted in self-defense, in part because Allen had told them so.
. “When a defendant in a criminal trial takes the stand the scope of cross-examination is very broad.” United States v. Raper, 219 U.S.App. D.C. 243, 248, 676 F.2d 841, 846 (1982). Indeed, as the trial judge instructed the jury in Raper, "when you put [the defendant] on [the stand], the prosecutor can ask him anything that might have any relevance to the case. And that includes what color eyes his grandmother’s cow has if it sheds any light on the issues of this case.” Id. Obviously, this does not mean that the cross-examination can embrace privileged or otherwise proscribed matters. The importance of providing the government with a fair opportunity to cross-examine a testifying defendant, however, militates against applying here what I regard as an unwarranted extension of the missing witness and missing evidence doctrine.
. And, by analogy, such argument.
.Allen argues as follows in his Reply Brief: The van or condition of the van would have proved nothing since there was no testimony that Manning fired into the van or damaged it in any way. Preserving the gun or shell casing would have been equally meaningless since there was no dispute that the defendant used a gun to kill the decedent. The only question was why. It was the location of the shell casing, not the shell casing itself, that was important, as proof of where the shooting occurred. Thus, it would have been useless for appellant to search the van for a shell casing because having a shell casing in court does not prove where it came from, or that it was the same shell casing. The jury would still have to take appellant’s word on that. Moreover, it is wholly unreasonable to expect that after the shooting, appellant could predict that, in a future trial, the location of the shooting would be in dispute and that an ejected shell casing may help prove the location. It takes lawyers and police technicians years of education and training to learn about the significance of such details.
Gerald could have elucidated the transaction had he been available. However, it is wholly unreasonable to think that after being involved in the emotionally wrenching experience of having to kill his best friend, appellant, who has no legal expertise, would immediately start keeping a list of witnesses for possible future use in court. Nor was there any reason to believe that Gerard would want to cooperate with appellant in such trial preparation or that appellant would have any reason to think he could not find Gerard if he needed him in the future.
. Cf. Dixon v. United States, 565 A.2d 72, 80 n. 15 (D.C.1989):
It may be appropriate to observe that the prosecutor’s having argued [an allegedly improper theme] did not preclude defense counsel from arguing the contrary. In fact, defense counsel did so, forcefully and in detail. Like many other issues, this one was appropriately left to the jury to decide after each side had its say.
. Since the judge instructed on a number of lesser included offenses, the jurors heard this several times.
.On one occasion, the prosecutor, in what the judge later characterized as a "slip of the tongue,” asked Allen if he and Gerard had searched the van to determine if there was anything in it that could help prove that he acted in self-defense. The question was interrupted by an objection. The judge stated that "he doesn’t have to prove it. " Later, contradicting a defense contention that the jury had not heard this remark, the judge stated that “I barked it out.” Although the majority fails explicitly to acknowledge the point, see maj. op. at 231 n. 17,1 think the judge’s description of his tone of voice amounted to a judicial finding that the juror heard him correct the prosecutor’s statement and that the problem was therefore resolved on the spot. Since there is no evidence to the contrary, the judge’s finding is binding on us.
. As one might expect, defense counsel energetically emphasized to the jury that the government had the burden to prove guilt beyond a reasonable doubt on all issues, specifically including the issue of self-defense.
. And arguments based on reasonable inferences from such evidence.
. Wigmore also differentiates between "the generally prohibited inference from the accused’s own failure to testify by claiming privilege, and the permissible inference from his failure to produce other evidence. II Wigmore, supra, at § 290, at 215 (emphasis in original). A prosecutor may comment on the failure of the defense, as opposed to the defendant, to counter or explain the evidence. United States v. Borchardt, 809 F.2d 1115, 1119 (5th Cir.1987). *240When a defendant testifies, as Allen did, on the merits of the case, the prosecutor may comment on his failure to explain or deny incriminating facts already in evidence. McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 (1982).
. Since the judge instructed the jury, and the prosecutor acknowledged, that the government bore the burden of proof as to self-defense, and since the McCowan and the other cases cited permit comment on omissions from, and the weakness of, the defense case, I cannot agree with my colleagues' view that the judge’s instruction "did not focus on the problem identified by defense counsel." Maj. op. at 230. The court’s instruction as to which party had the burden applied to any situation that arose, whether defense counsel "identified" it or not.
. Since, in the present case, the prosecutor’s reference was to what Allen failed to preserve at the time of Manning’s death, rather than to what he failed to present to the court, the reasoning of Sensi, Johnson, Glantz and Gotchis applies a fortiori.
.The government’s burden of proof beyond a reasonable doubt "provides concrete substance for the presumption of innocence,” In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), which in turn describes "the right of the accused to 'remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion.’ ” Taylor v. Kentucky, 436 U.S. 478, 483 n. 12, 98 S.Ct. 1930, 1934 n. 12, 56 L.Ed.2d 468 (1978) (quoting J. Wigmore, Evidence § 2511, at 407 (3d ed. 1940)). That right to "remain inactive and secure,” however, manifestly does not prevent the prosecutor from attacking the defendant’s credibility when he takes the stand, see note 3, supra, or probing the inconsistency *241of an affirmative defense with the defendant’s own conduct in the wake of the conceded killing.
. My colleagues cite United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1980), for the proposition that permitting the defendant to explain post-arrest silence will not cure the infringement of his constitutional privilege against self-incrimination occasioned by the prosecutor’s questioning of him on that subject. That decision turned on the applicability of "grave constitutional overtones," id. at 180 n. 7, 95 S.Ct. at 2138 n. 7, which are not present here.
. I have no quarrel with my colleagues’ recitation of the defense evidence. Maj. op. at 227-228. I believe, however, that Allen’s lies and contradictions are an important part of the overall picture in our attempt, from a distance, to assess the overall strength of the case for the prosecution and the response from the defense.
. "False exculpatory statements made to law enforcement officers constitute independent circumstantial evidence of guilty consciousness.” Irick v. United States, 565 A.2d 26, 30 n. 8 (D.C.1989) (citations omitted). As Dean Wig-more has compellingly explained,
It has always been understood — the inference, indeed, is one of the simplest in human experience — that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.
II Wigmore, supra, § 278, at 133 (emphasis added to last sentence only).
. In the present case, these difficulties are compounded by delays occasioned not only by Allen’s flight and concealment, but also by his original plea of guilty to second degree murder and to carrying a pistol without a license, later withdrawn. It is now more than six and a half years since Manning’s death.
. I am troubled by the potential prejudice to Allen occasioned by the admission of Annie Johnson’s testimony that she heard a third person tell Manning that Allen was going to kill Manning. In my view, the trial judge’s limiting instruction with respect to the purpose for which this evidence may be considered, see maj. op. at 228-229 n. 9, might be a great deal more difficult for reasonable (but nevertheless human) jurors to follow than the far less taxing directive defining the burden of proof. I note that Judge Weisberg originally ordered the challenged testimony stricken, but subsequently changed his mind after hearing argument of counsel. Although I agree with my colleagues that there was no abuse of discretion, the judge will surely, in the event of a new trial, be authorized to re-weigh the probative value of the evidence against its prejudicial effect, cf. Rule 403 of the Federal Rules of Evidence, in *244the new context which will arise as the evidence is presented once again.