concurs in the result.
III.
SUPPRESSION OF INCULPATORY STATEMENTS
Rhoades was arrested on March 25, 1987. He was being sought as a suspect in an Idaho murder investigation, and when his car was identified in Nevada, a Nevada Highway Patrol Officer, George McIntosh, drove to the scene of the arrest with two officers from Idaho, Victor Rodriguez and Dennis Shaw, who were investigating unsolved homicides in Idaho. Two Nevada officers, Trooper Neville and Officer Miller, were holding Rhoades at the scene of the arrest. Another Nevada officer, Shires, arrived at the scene as back up. Shaw testified that as he and Rodriguez approached Rhoades where he was being held against the car by Neville and Miller, Rhoades made a spontaneous statement of “I did it,” without being directly addressed or questioned by the officers. Miller claims to have heard that first statement, although it was not included in his initial report of the arrest. Miller did include that fact in a supplemental report filed two months later. Officer McIntosh testified that he did not hear the statement, nor was it overheard by Trooper Neville.
After being read his rights, Rhoades was transported to the Highway Patrol Substation in Wells, Nevada. He did not make any statements en route. Officers Shires, Miller, Neville, McIntosh, Shaw, and Rodriguez were present at the station. Shaw made a statement to the defendant to the effect that if he had been apprehended earlier, the victims of his crimes might still be alive. Rodriguez testified that in response to that statement, Rhoades stated, “I did it.” This second statement at the station was not part of Miller’s initial report, although he claims to have overheard it. Both Shires and Miller reported the statement in supplemental reports filed several months after the arrest. This statement was also not recorded by Officer Shaw in his report. Rhoades made no further statements.
Rhoades argues on this appeal that the trial court should have excluded those statements for three reasons: 1) the ques*601tionable reliability of the evidence, given the fact that several of the officers who claimed to have overheard the statements failed to record the fact in their reports until months after the arrest; 2) the failure of the police to tape record the statements; and 3) the statements were the result of the violation of Rhoades’s Miranda rights.
On the first point, the defense argues that due process under the state and federal constitutions requires an enhanced degree of reliability during the guilt determination stage of a capital prosecution. We reject this argument.
The United States Supreme Court has imposed many procedural protections for capital cases. See, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, the cases do not go so far as to alter the types of evidence or establish a minimum degree of reliability of evidence that may be admissible during the fact finding phase of a potential capital case. The prosecution in such cases is not required to prove the crime by any higher standard than the “beyond a reasonable doubt” standard used in other criminal cases. Admission of evidence is not governed by any separate rules applicable only in capital eases. Therefore, there is no reason to conclude that testimony which is questionable must be excluded during the guilt determination phase of a capital case. The credibility of evidence in a first degree murder case, as in all others, is an issue for the trier of fact.
Likewise, we cannot accept the contention that in order to be admissible, statements made in custody must be tape recorded by the police. The defense cites an Alaska case, Stephan v. State, 711 P.2d 1156 (Alaska 1985), holding that custodial confessions must be tape recorded in order to be admissible under the due process clause of the Alaska State Constitution. That case represents no more than the prerogative of each state to extend the protections of its own constitution beyond the parameters of federal constitutional guarantees. We decline to adopt Alaska’s standard in Idaho.
We now turn to the issue of whether Rhoades’s Miranda rights were violated by the police during his arrest and custody.
There is some conflict in the record as to whether Rhoades was read his Miranda rights while in the custody of Nevada Officers Miller and Neville, or if he was given the Miranda warnings for the first time by Officer Rodriguez after Rodriguez, Shaw, and McIntosh arrived at the scene. Although the record does not support the trial court’s finding that the first statement by Rhoades was preceded by a Miranda warning, that factual issue does not affect our conclusion that both statements were properly admitted into evidence.
The first “I did it” statement, while Rhoades was handcuffed in the parking lot was apparently spontaneous. So spontaneous in fact, that according to uncontested police accounts, Rhoades made the statement without being questioned or otherwise addressed by any of the officers present. As a spontaneous statement, it was admissible whether it occurred before or after Rhoades was read his Miranda rights.
“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence____ Volunteered statements of any kind are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). Although the statement entirely lacked any context to make it meaningful, the trial court correctly concluded that it was for the jury to decide to what Paul Rhoades referred when he said “I did it” at the scene of the arrest.
The second statement at the station house, made in response to Shaw’s comment, is also admissible. The trial court found that there was insufficient evidence in the record to support the inference that Rhoades had asserted his right to remain silent at any time during the arrest and booking. Officer McIntosh did testify that after Rodriguez finished reading the Miranda rights, Rhoades nodded as if to indicate that he understood. Then McIntosh testified that Rodriguez said something *602else, which McIntosh could not hear, whereupon Rhoades shook his head. McIntosh took the gesture to mean that Rhoades was asserting his right to remain silent.
Those facts are the sole basis in the record for the contention that Rhoades did assert his right to remain silent. There is no evidence in the record as to what Rhoades was responding to when he shook his head negatively. On the strength of this evidence alone, the trial court declined to infer that the shake of the head indicated a desire to remain silent. That finding is not clearly erroneous, given the absolute lack of evidence to the contrary.
Miranda teaches that “[ojnce warnings have been given, the subsequent procedures are clear. If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627.
In this case, based on the record before us, Rhoades did not assert his right to remain silent. If he had, Shaw’s comment, properly found by the trial court to be “the functional equivalent of interrogation," would have been improper, and the second statement would not have been admissible. However, the Miranda rule does not require police to maintain total silence toward the suspect until they are presented with a valid waiver of Miranda rights. Rather, the requirement that interrogation must cease comes into play when the accused indicates in any manner that he or she does not want to converse with the police, or that the presence of an attorney is desired. After rights are read to and acknowledged by the detainee and until the right to silence or counsel is asserted, the police may initiate questioning.
The record indicates that Rhoades was read his rights before the second statement and acknowledged that he understood them. Although there is evidence that Rhoades was heavily influenced by narcotics at the time of the arrest, Officer Shaw testified that while searching his person, he engaged Rhoades in conversation to test his alertness and found that he had sufficient capacity to understand what was going on around him.
In sum, Rhoades had been instructed upon and understood his rights at the time of arrest, and there is insufficient evidence to indicate that he asserted his right to remain silent. For the foregoing reasons we conclude that the second statement made in response to Shaw’s “interrogation” is not subject to suppression under Miranda v. Arizona.
BAKES, C.J., JOHNSON, SCHROEDER and REINHARDT, JJ., Pro Tem., concur.IV.
JAILHOUSE INFORMANT TESTIMONY
The defense made a pretrial motion to exclude the testimony of two persons listed as prosecution witnesses, David Holm and Cliff Jones. Both men were inmates at the penitentiary where Rhoades was incarcerated, and both had offered to testify that Rhoades had confessed to the murder of Nolan Haddon in their presence.
Both witnesses had previous felony convictions. David Holm had a history of offering testimony to law enforcement officials in return for favorable treatment in his own criminal cases. The defense had a full panoply of other witnesses prepared to testify that Holm had a reputation for untruthfulness. The facts contained in the alleged confession could have been ascertained by Holm independently of Rhoades himself during a twenty-four hour period in which the two men shared a cell containing all of Rhoades’s personal files documenting his case. Holm also had access to media during the time that the Rhoades case was in the news. At the time that he came forward with Rhoades’s purported confession, Holm was awaiting sentencing on two felony charges, as well as an additional “persistent violator” charge that might have landed him in prison for life.
At the time that Cliff Jones stepped forward with incriminating evidence against Rhoades, he immediately asked for reduc*603tion of the twelve-year sentence he was then serving, in return for his “cooperation.”
The defense urged the trial court to exclude this evidence prior to trial, on the ground that it was inherently unreliable. The trial court declined to do so, although expressing its own skepticism regarding the truthfulness of the testimony. The court ruled that the credibility of the evidence was an issue for the jury, but that it would require a foundation, allow liberal cross-examination when the time came, and would also consider an instruction to the jury to the effect that the “jailhouse informant” testimony should be regarded with suspicion.
On appeal, Rhoades argues that to allow such questionable testimony constituted a violation of the due process clauses of the state and federal constitutions. He contends that the evidence should have been excluded under I.R.E. 403, whereby the trial court may exclude relevant evidence if its prejudicial effect outweighs its probative value.
There are very few categories of people whose testimony must be excluded as a matter of law. In general, every person is competent to be a witness, except “[p]er-sons whom the court finds to be incapable of receiving just impression of the facts respecting which they are examined, or of relating them truly.” I.R.E. 601(a). “The determination of whether a witness is credible is one of fact, and in the context of a suppression hearing, is to be made by the trial court.” State v. Fain, 116 Idaho 82, 86, 774 P.2d 252, 256 (1989). As long as the evidence offered by the testimony is relevant under I.R.E. 402, any person meeting the above qualifications may testify, subject, of course, to exclusion in the discretion of the trial court under I.R.E. 403.
In this case, both informants presumably had the capacity to tell the truth. The evidence of Rhoades’s confession which the witnesses offered was certainly relevant to the case. Whether any shred of truth was contained within their testimony was a matter for a jury to evaluate. As the trial court noted, the defense at trial had “fertile ground for cross-examination” and impeachment of these witnesses.
The defense has cited numerous cases containing judicial recognition of the dubious nature of confession evidence coming from fellow prison inmates. People v. Campa, 36 Cal.3d 870, 206 Cal.Rptr. 114, 686 P.2d 634 (1984); People v. Mroczko, 35 Cal.3d 86, 96, 197 Cal.Rptr. 52, 57 n. 8, 672 P.2d 835, 840 n. 8 (1983). However, those cases address the issue in the context of the adequacy of information creating probable cause to issue a warrant, the determination of which involves reliability of informants as a crucial factor. None of the cases cited lead to the conclusion that jailhouse informant testimony must be excluded from all courtroom proceedings as a matter of law.
The defense requested the trial court to disallow the testimony under I.R.E. 403, which allows the trial court to exclude relevant evidence where “its probative value is substantially outweighed by the danger of unfair prejudice, ...” The standard by which we review such a decision is whether the trial court committed an abuse of discretion. Davidson v. Beco Corp., 114 Idaho 107, 110, 753 P.2d 1253, 1256 (1987). In extreme cases, admission of evidence carrying a high degree of unfair prejudice and negligible probative value may result in a violation of state and federal due process. Wright & Graham, Federal Practice and Procedure § 5215, at 274.
This Court has previously explained the weighing process that must accompany a Rule 403 motion:
The rule creates a balancing test. On one hand, the trial judge must measure the probative worth of the proffered evidence. The trial judge, in determining probative worth, focuses upon the degree of relevance and materiality of the evidence and the need for it on the issue on which it is to be introduced. At the other end of the equation, the trial judge must consider whether the evidence amounts to unfair prejudice. Here, the concern is whether the evidence will be given undue weight, or where its use results in an inequity, or as several com*604mentators have suggested, “illegitimate persuasion.” Only after using this balancing test, may a trial judge use his discretion to properly admit or exclude the proffered evidence.
Davidson, 114 Idaho at 110, 753 P.2d at 1256 (citations omitted).
It is clear that evidence of a confession of the crime charged is highly relevant and probative. Although it is also highly prejudicial to the defense, the inquiry is not whether the evidence is harmful to the strategy of the party opposing its introduction. Any evidence is prejudicial to the party whose theory of the case it contradicts. State v. Fenley, 103 Idaho 199, 203, 646 P.2d 441, 445 (Ct.App.1982), no pet. rev. filed. The proper focus of the trial court is upon “unfair prejudice;” whether fact to be shown by the evidence justifies the tendency of the evidence to “persuade by illegitimate means.” Wright & Graham Federal Practice and Procedure § 5215, at 275. In other words, evidence should be excluded if it invites inordinate appeal to lines of reasoning outside of the evidence or emotions which are irrelevant to the decision making process.
In this case, we cannot say that the probative value of the evidence is outweighed by unfair prejudice to the defendant as a matter of law, especially since the court offered to mitigate the effect of the testimony by allowing liberal cross-examination of the informers and by considering jury instructions to the effect that the testimony should be regarded with suspicion. We therefore conclude that state and federal due process guarantees are not implicated by the trial court’s failure to exclude evidence of dubious veracity, and that the trial court’s decision did not amount to an abuse of discretion.
BAKES, C.J., JOHNSON, J., and SCHROEDER and REINHARDT, JJ., Pro Tem., concur.V.
DISQUALIFICATION OF TRIAL JUDGE FOR PREJUDICE
Prior to facing charges for the murder of Nolan Haddon, Rhoades was tried and convicted for the murder of Susan Michelbacher by a jury, and sentenced to death by the same judge who presided over the Haddon case. In deciding that the death penalty was appropriate for the Michelbacher homicide, the trial judge made detailed findings of fact, as required by statute. Those findings, weighing the aggravating and mitigating factors of the crime and Rhoades’s character, concluded that, “[t]he murder and accompanying acts are those of someone morally vacant and totally devoid of conscience,” and that the circumstances of the crime were “extremely wicked and vile, shockingly evil, and designed to inflict a high degree of physical and mental pain with utter indifference to and with the apparent enjoyment of the suffering____” The judge also found that Rhoades has a propensity to commit murder and constitutes a continuing threat to society.
Rhoades moved to disqualify the trial judge from the Haddon case, arguing that after having reached such extreme and negative conclusions concerning the defendant, the trial judge could not possibly remain neutral during a second trial of the same person for a different crime.
A majority of the Court sitting on this case is of the opinion that this issue, as framed by the appellant, is not necessary to decide as the defendant was not sentenced to death in this case, or for the reason that the trial judge is able to carry out the duties of sentencing and still afford a defendant a fair trial in a subsequent proceeding.
SCHROEDER and REINHARDT, JJ., Pro Tem., concur. BAKES, C.J., concurs in result.