(dissenting):

The majority relies principally on the conclusion that the inference drawn from Valenzuela’s refusal to testify did not add “critical weight” 1 to the prosecution’s case because the facts the jury might have inferred from Valenzuela’s claim of privilege were testified to directly by the witnesses Osorio and Pino.

It is respectfully submitted that the majority’s premise is faulty.

The prosecution’s theory was that petitioner and Valenzuela took the decedent to an abandoned adobe hut on the edge of Phoenix and there stabbed him to death, petitioner wielding the knife.

The prosecution offered Osorio and Pino as witnesses. They testified that before the killing petitioner told Valenzuela he and Valenzuela would have to dispose of the victim; that petitioner and Valenzuela left with the victim, and were later seen without him; and that in subsequent conversations between petitioner and Valenzuela, petitioner admitted the killing.

Despite this testimony, the state’s case against petitioner was vulnerable, for the credibility of Osorio and Pino had been seriously undermined. Both were members of the group of narcotics users, including petitioner and Valenzuela, that the victim sought to infiltrate. Both were admittedly with petitioner and Valenzuela before and after the killing. Osorio had a criminal record. At one point he had himself confessed to the killing with which petitioner was charged. Osorio admitted that the deputy county attorney had promised that he would not go to prison if he would testify against petitioner and Valenzuela. 2 Pino had been twice charged with narcotics offenses. He testified, however, that he had “made a deal” that resulted in those charges being dismissed in return for his testimony.

With the trial in this posture, the state insisted that it had the “right” to *696 call Valenzuela, put him on the stand, and require him to refuse to testify before the jury, although, as the majority states, the prosecutor knew that Valenzuela “would assert the privilege.” 3 Petitioner’s counsel objected on the ground that since it was clear that Valenzuela would not testify, his appearance before the jury could produce no probative evidence, but only serve to prejudice petitioner because of the improper inference the jury would draw. 4 Although obviously concerned, and after warning the prosecutor that he might be risking reversal, the state trial judge concluded that he had “no jurisdiction or authority to tell the State who to call or when to call,” and therefore felt compelled to accede to the prosecutor’s demand.

The state’s insistence upon calling Valenzuela in the face of the strong opposition of defense counsel and the evident reluctance of the trial judge belies the state’s present position that calling Valenzuela was an empty ritual. To the contrary, the state’s trial attorney considered the exercise of the state’s “right” to require Valenzuela to claim the privilege before the jury vitally important to the state’s case. The reason is clear enough.

The jury was unlikely to credit such interested and dubious witnesses as Oso-rio and Pino. Yet the state’s case rested entirely on their testimony. If Valenzuela remained silent on the ground that his testimony would incriminate him, the jury would inevitably infer that had he testified he would have admitted the acts and statements, damning equally to petitioner, that Osorio and Pino had described. The inference the jury would inevitably draw from Valenzuela’s refusal to testify would corroborate the testimony of the state’s key witnesses and bolster their credibility.

Precisely this situation was presented to the Court of Appeals for the Second Circuit in United States v. Maloney, 262 F.2d 535, 537 (2d Cir. 1959). Maloney and others were charged with offenses arising out of a scheme to blackmail. An accomplice, Parker, “appeared as a witness for the prosecution and his testimony was its main reliance.” He described in detail the activities of the defendants and others in the scheme. The state then called three unindicted participants in the scheme, and asked them about their participation as testified to by Parker. Each declined to answer on grounds of possible self-incrimination.

In reversing, Judge Learned Hand pointed out, “The jury was unlikely to accept Parker’s testimony unless it was corroborated” (536), and continued (537):

It turns things upside down to say, as the majority does, that the inference that Valenzuela participated in the crime with petitioner was rendered harmless by Osorio and Pino’s direct testimony to those facts. The point, to repeat, is that the testimony of Osoria and Pino was rendered credible by the improper but inevitable inference the jury was permitted to draw from Valenzuela’s silence.

It is no answer to say, as the majority does, that the prosecutor’s closing comment upon Valenzuela’s silence was brief and the jury was not solicited to draw inferences against petitioner. There was no need to emphasize the obvious. Petitioner’s counsel accurately describes the impact of the incident in the context of the trial when he states that though Valenzuela’s “only testimony before the jury consisted of his name, age and domicile,” he was “the star witness against” petitioner. The episode constituted more than a “minor lapse” in the context of the entire proceeding. See Douglas v. Alabama, 380 U.S. 415, 420 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965); United States v. Hiss, 185 F.2d 822, 832 (2d Cir. 1950). For the reasons suggested earlier, it was the crux of the state’s ease.

It is inaccurate to say, as the majority does, that petitioner did not ask for a curative instruction. When Valenzuela was called before the jury and refused to testify, petitioner’s counsel objected, moved for a mistrial, and asked that “the jury be instructed ... to disregard this testimony.” When the prosecutor commented upon Valenzuela’s *698 silence in closing argument, petitioner’s counsel again objected, moved for mistrial, and asked “that the prosecutor’s remarks be stricken.”

Thus on both occasions counsel asked the court to address the jury with respect to the prosecutor’s reliance upon the witness’s silence. In his argument in support of these requests, petitioner’s counsel fully advised the court that his basic objection was that the jury would draw inferences adverse to petitioner from the witness’s refusal to testify. On this record it is an excess of technicality to hold that counsel failed - in his obvious purpose to obtain a “curative or neutralizing instruction” simply because he did not use those magic words.

The suggestion that petitioner may have had tactical reasons for failing to request such an instruction is insupportable. He asked for such an instruction in substance, if not in form. Even if he had not made his wishes so clear, no reason can be suggested why he would not want the instruction. Obviously the motivation referred to in Bowles v. United States, 439 F.2d 536 , 542 n. 6 (D.C. Cir. 1970), was not present in this case. 6

Finally, this ease contains none of those factors, noted in Maloney, supra, 262 F.2d at 538 , that have led courts to affirm convictions in spite of the fact that the prosecutor knew a witness would refuse to testify if called.

Valenzuela clearly had the right to invoke the privilege since he was appealing his murder conviction at the time in question. He had not “lost any privilege he might have had.” Maloney, id.; see United States v. Gernie, 252 F.2d 664, 669-670 (2d Cir. 1958).

Petitioner objected strenuously to the testimony of Valenzuela. He did not allow “the examination to go on so long without protest that he had lost any right to raise the question.” Maloney, 262 F.2d at 538 ; see United States v. 5 Cases, etc., 179 F.2d 519, 523 (1950).

The writ should issue.

. The “critical weight” theory is explained in Namet v. United States, 373 U.S. 179, 187 , 83 S.Ct. 1151, 1155 , 10 L.Ed.2d 278 (1963):

. Osorio was paroled within two months after petitioner’s conviction.

. In a hearing out of the jury’s presence, Valenzuela’s counsel informed the court that if required to take the stand Valenzuela would claim his Fifth Amendment privilege and refuse to answer any questions. The court had Valenzuela sworn and questioned out of the jury’s presence, and Valenzuela asserted the privilege. Nonetheless, at the prosecutor’s insistence the performance was repeated before the jury moments later.

. The state argued that, if it failed to call Valenzuela, it would leave itself open to the “missing witness” plea: since the jury had a “reasonable idea” that Valenzuela was in custody, if he were not called the jury would infer that it was because lie would not corroborate the state’s theory.

Petitioner’s counsel correctly pointed out that the court could avoid prejudice to the government by admonishing defendant not to suggest to the jury that any inference unfavorable to the prosecution could be drawn from failure of the witness to appear. If counsel made any such suggestion, the prosecution would then be free to disclose the reason for the witness’s absence. United States v. Roselli, 432 F.24 879, 904 (9th Civ. 1970); United States v. Maloney, 262 F.2d 535, 537 (2d Cir. 1959).

. As the majority implies, the Confrontation Clause of the Sixth Amendment, made applicable to the states by the Fourteenth, Pointer v. Texas, 380 U.S. 400, 403 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (19G5), forbids use of inferences from the claim of privilege that add critical weight to the prosecution’s case in a form not subject to cross-examination. Douglas v. Alabama, 380 U.S. 415, 420 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965).

This is true whether the prosecution or the defense seeks to rely upon such inferences. See United States v. Beye, 445 F.2d 1037, 1038 (9th Cir. 1971), following the decision in Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970). The rule and its reasons are stated in Bowles, id., at 541-542:

. In Bowles the government’s theory was that the defendant alone committed the crime. The defense was that the crime had been committed by another person. The trial court declined to call this person as a defense witness upon being advised that he would claim his Fifth Amendment privilege. The question was whether the trial court should have given an instruction that no inference was to be drawn from the witness’s absence. Defendant had not requested such an instruction. As the appellate court pointed out, defendant’s counsel may have reasoned that without an admonitory instruction the jury would not blame the defendant for the witness’s absence since defendant could not be expected to produce a witness who would testify that he and not the defendant committed the crime. On the other hand, the jury might well wonder why the government did not produce the witness since, on the government’s theory the witness if called would only have had to deny that he committed the crime. Thus from the defendant’s viewpoint, “The possibility for arousal of a reasonable doubt in the minds of the jurors would have been removed by a neutralizing instruction from the court.”

In the present case the government’s theory was that both petitioner and the witness committed the crime; and the defense did not seek to exculpate petitioner at the expense of Valenzuela. See also note 4, supra.