The opinion
LAMBROS, District Judge,
concurring.
While I concur completely in the opinion filed by Judge Keith, I wish to emphasize that we do not hold that post-arrest silence is never a proper subject of prosecutorial comment, but only that the propriety of such comment does not depend on whether or not the defendant has been read his Miranda warnings. Thus, for example, if a defendant testifies that he told the police an exculpatory version of the facts upon arrest, then the fact of silence may of course be used to challenge the defendant’s behavior following arrest. Doyle v. Ohio, 426 U.S. 610, 619-20, n.11 , 96 S.Ct. 2240, 2245, n.11 , 49 L.Ed.2d 91 (1976).
I also wish to elaborate on our finding of prejudicial error. Having held that comments of the sort complained of here are constitutionally impermissible, to find that they are nevertheless harmless would in essence encourage similar misconduct in future cases. I do not feel that we can allow prosecutors the discretion to decide that, having presented ample untainted evidence, they may make this type of comment without jeopardizing the outcome of their case.