COLEMAN, Judge.

The issue in this criminal appeal is whether a defendant's tacit admission by silence following a police officer's question in a non-custodial setting was erroneously admitted into evidence in violation of the constitutional protections afforded by the Fifth Amendment to the United States Constitution and Article I, Section 8 of the Virginia Constitution.

William Thomas Taylor was convicted of possessing a firearm after having been convicted of a felony in violation of Code § 18.2-308.2 and of carrying a concealed weapon in violation of Code § 18.2-308. At trial, the Commonwealth introduced evidence during its case-in-chief that when the investigating officer asked Taylor, who was being treated at a hospital for injuries received in a motor vehicle accident, whether the firearm discovered in Taylor's van belonged to him, Taylor remained silent. The Commonwealth introduced such evidence as a tacit admission from which the fact finder would be permitted to infer that Taylor admitted by his silence that he owned the firearm. We hold that the trial court erred by admitting the evidence because proof that the appellant remained silent impermissibly burdened the exercise of his privilege against compelled self-incrimination under the Fifth Amendment of the United States Constitution and Article I, Section 8 of the Virginia Constitution.

I. BACKGROUND

When Amherst County Deputy Sheriff Lindy Inge responded to the scene of a single-vehicle accident, he observed the appellant resting against a heavily damaged van. Deputy Inge determined that the appellant was injured and called for an ambulance. While surveying the damage to the van, Inge observed the interior of the van through an open door. He saw a handgun in the driver's door compartment and seized it.

Later, Inge went to the appellant's hospital room to investigate the accident. During the interview, Inge asked the appellant whether he owned the gun found in the van. The appellant did not respond.

At trial, Inge testified in the Commonwealth's case-in-chief, over objection by the appellant on constitutional grounds, that the appellant remained silent in response to the question regarding ownership of the gun. The trial court overruled the objection, and this appeal followed.

II. ANALYSIS

This appeal raises fundamental questions about the breadth and scope of the constitutional privileges against compelled self-incrimination. Article I, Section 8 of the Virginia Constitution provides, in pertinent part, that a person may not "be compelled in any criminal proceeding to give evidence against himself." The privilege under the Virginia Constitution is "in effect, identical" to the privilege against self-incrimination afforded under the Fifth Amendment of the United States Constitution. Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E. 289, 291 (1912). See also Farmer v. Commonwealth, 12 Va. App. 337, 340, 404 S.E.2d 371, 372 (1991) (en banc). Accordingly, we apply Fifth Amendment principles in addressing the challenge under Article I, Section 8. See Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d 315, 318 (1963); Farmer, 12 Va. App. at 340, 404 S.E.2d at 372.

The Fifth Amendment to the Federal Constitution provides that "no person shall . . . be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. An individual may assert this privilege whenever the government seeks to compel self-incriminating testimonial or communicative evidence. See Ronald J. Bacigal, Virginia Criminal Procedure § 7-1, at 129, § 7-11, at 154 (3d ed. 1994). The privilege arises before the institution of formal adversarial proceedings, and may be asserted in investigatory as well as adjudicatory settings. See Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (comparing attachment of Sixth Amendment right to counsel only after a defendant becomes an "accused" with Fifth Amendment mandate that no "person" shall be compelled to provide incriminating evidence against himself).

"The major thrust of the policies undergirding the privilege is to prevent [government] compulsion." Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 2348-49, 101 L.Ed.2d 184 (1988). Fundamental to that concept is the principle that the government may not compel a defendant to testify at trial. See Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1620-21, 16 L.Ed.2d 694 (1966); Gosling v. Commonwealth, 14 Va. App. 158, 165-66, 415 S.E.2d 870, 874 (1992). The privilege also extends to situations where an accused or suspect who is in custody may feel compelled to verbally disclose incriminating evidence to a government agent. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. In furtherance of this policy, the Supreme Court has held that because government compulsion inheres in the coercive environment of a custodial interrogation following an arrest, an accused must be expressly informed of the Fifth Amendment "right to remain silent" and warned that "anything he says may be used against him." Id. at 461, 86 S.Ct. at 1621.

This appeal raises a more difficult question than whether the government may require an accused to testify in a criminal proceeding or compel the person to answer questions while in custody. The issue here is whether the Fifth Amendment affords any protection to an individual who is not compelled to testify or speak from having the persons exercise of his fundamental right to remain silent from being used in a judicial proceeding as an admission of guilt. In other words, do the constitutional privileges against self-incrimination protect a defendant's pre-custodial silence in response to police questioning from being introduced as substantive evidence of guilt in the government's case-in-chief. Although the Supreme Court has not expressly addressed this issue, its decisions regarding the government's use of an accused's silence at trial and the scope of the Fifth Amendment privilege are instructive.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that the government's impeachment use of a defendant's silence during a custodial police interrogation violates the defendant's due process rights because the Miranda warnings given after arrest contain "implicit assurances" that the government will not penalize such silence. 426 U.S. at 617, 96 S.Ct. at 2244. In so holding, the Court noted that "every post-arrest silence is insolubly ambiguous because of what the State is required to advise" the defendant. Id. (emphasis added). In this case, however, the appellant chose to remain silent prior to being placed into custody. The officer was not required to provide Miranda warnings. Because the appellant did not rely on any "assurances" in remaining silent before arrest, Doyle's due process approach that prohibits the government's use of silence, although informative, does not directly apply here. Cf. Fletcher v. Weir, 455 U.S. 603, 605-06, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982) (per curiam) (holding that government did not violate defendants due process rights under Doyle by using his silence as impeachment evidence because he did not rely on implicit assurances from government where government had placed defendant into custody but had not provided him Miranda warnings).

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the prosecution sought to infer the defendants guilt by commenting on the defendant's failure to testify at trial. 380 U.S. at 615, 85 S.Ct. at 1233. In holding that the Fifth Amendment forbids the substantive use or comment upon Griffin's refusal to testify, the Court broadly stated that the government could not impose a penalty on a defendant's exercise of the Fifth Amendment privilege. Id. at 614, 85 S.Ct. at 1232-33. The Court determined that this use of Griffin's silence "cuts down on the privilege by making its assertion costly." Id. In doing so, Griffin noted that prosecutorial comment on the refusal to testify is a "remnant of the `inquisitorial system of criminal justice which the Fifth Amendment outlaws.'" Id. (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (1964)).

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the defendant testified at his murder trial that he killed the victim in self-defense. 447 U.S. at 233, 100 S.Ct. at 2126. The prosecution sought to impeach Jenkins' credibility by presenting evidence that, prior to his arrest, he failed to tell anyone that he killed in self-defense. Id. at 233-34, 100 S.Ct. at 2126-27. Jenkins claimed that proof of his pre-arrest failure to give this explanation violated his Fifth Amendment privilege against self-incrimination. Id. at 234, 100 S.Ct. at 2127.

In Jenkins, the Court examined whether the impeachment use of Jenkins' pre-arrest silence impermissibly burdened the exercise of his Fifth Amendment privilege. Id. at 237-38, 100 S.Ct. at 2128-29. The Court considered "whether [the government's action] impairs to an appreciable extent any of the policies behind the [privilege]," id. at 236, 100 S.Ct. at 2128, as well as "the legitimacy of the challenged governmental practice." Id. at 238, 100 S.Ct. at 2129.

The Jenkins Court recognized that impeachment use of silence may be valuable to the trial process while imposing very little burden upon the individual's right to remain silent. Id. The Court noted that impeachment enhances the reliability of trial evidence and allows the government to test the credibility of an accused who voluntarily elects to testify. Id. The Court found the burden on the privilege to be minimal when silence is used for impeachment because "impeachment follows the defendant's own decision to cast aside his cloak of silence" by testifying. Id. "Once a defendant decides to testify, `[t]he interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.'" Id. (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958)). Accordingly, the impeachment use of Jenkins' silence did not "impermissibly burden" his exercise of the privilege and was, thus, allowable under the Fifth Amendment. Jenkins, 447 U.S. at 238, 100 S.Ct. at 2129.

As Griffin and Jenkins make clear, in defining the protection that the Fifth Amendment provides against the government's using a persons silence as evidence, we must examine the burden on the exercise of the privilege imposed by the government's practice. See Dean v. Commonwealth, 209 Va. 666, 670, 166 S.E.2d 228, 231 (1969) (relying on Griffin and determining that Fifth Amendment precludes prosecutions use of a defendant's refusal to testify in another trial because "[t]he value of constitutional privileges is largely destroyed if persons can be penalized from relying on them" (quoting Grunewald v. United States, 353 U.S. 391, 425, 77 S.Ct. 963, 984, 1 L.Ed.2d 931 (1957) (Black, J., concurring))). Furthermore, we must consider the utility of the government's use of silence in the trial process. Jenkins, 447 U.S. at 238, 100 S.Ct. at 2129. Applying the Supreme Court's approach, we balance the government's interest in using the appellants pre-arrest silence as substantive evidence of guilt against the burden such use imposes on the policies underlying the privilege against self-incrimination. Cf. Miranda, 384 U.S. at 459-60, 86 S.Ct. at 1620 ("The privilege . . . has always been [considered] `as broad as the mischief against which it seeks to guard.'" (quoting Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197-98, 35 L.Ed. 1110 (1892))).

The Commonwealth's sole objective in introducing evidence of the appellant's silence was as substantive evidence to prove his guilt. Cf. Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976) (distinguishing government practice in Griffin from substantive use of silence in prison disciplinary proceeding because such proceedings involve correctional process, not criminal process, and entail important state interests other than conviction for crime). Here, the appellant did not testify. Thus, unlike as in Jenkins, the Commonwealth's use of the appellant's silence did not "enhance the reliability of the criminal process" through impeachment because the appellant's credibility was not at issue. Jenkins, 447 U.S. at 238, 100 S.Ct. at 2129. Rather, the Commonwealth sought to use the appellant's silence in response to Deputy Inge's incriminating question as to ownership of the gun as a tacit admission that appellant possessed the gun. The probative value of the evidence as an admission is doubtful at best because Deputy Inge's question was not so clearly accusatory that it satisfied the requirements for a tacit admission of guilt. Moreover, appellant may have chosen to not answer the question and to remain silent for any number of reasons. Accordingly, the Commonwealth's substantive use of the appellant's silence did not significantly "advance the truth-finding function of the criminal trial." Jenkins, 447 U.S. at 238, 100 S.Ct. at 2129.

Conversely, the substantive use of the appellant's pre-arrest silence substantially burdened the policies underlying the privilege against requiring a person to give statements that may be incriminating. First, such use offends the privileges unwillingness to subject persons to the "cruel trilemma" of perjury, contempt or self-accusation. Murphy, 378 U.S. at 55, 84 S.Ct. at 1596. Were we to hold that silence in response to a police officer's question may be used as substantive proof to infer a defendant's guilt, then those suspected of crime who chose to remain silent but are brought to trial will face a "new trilemma" of perjury, self-accusation by statement or self-accusation by silence. Anne B. Poulin, Evidentiary Use of Silence and the Constitutional Privilege Against Self-Incrimination, 52 Geo.Wash.L.Rev. 191, 211 (1984). Paradoxically, if this view prevailed, a person who chooses to remain silent or not cooperate with an investigation for whatever reason would be subject to having his silence affirmatively used against him to prove guilt, whereas the suspect who is questioned in a custodial setting must be told that he may remain silent and that the exercise of that right may not affirmatively be used against him. If the Commonwealth were permitted to use both a person's pre-arrest responses and his silence in its case-in-chief, no avenues are available to a person in a non-custodial situation that would avert self-incrimination. See State v. Easter, 130 Wn.2d 228, 922 P.2d 1285, 1291 (1996).

Second, the substantive use of silence conflicts with the privileges function to "requir[e] the government, in its contest with the individual to shoulder the entire load" of producing incriminating evidence. Murphy, 378 U.S. at 55, 84 S.Ct. at 1596-97. Here, when the Commonwealth did not obtain an incriminating statement from the appellant, it, in effect, constructed one from the appellant's silence and presented it as an admission of guilt. To condone such a practice would undermine the notion that the government should accumulate evidence "by its own independent labors." Miranda, 384 U.S. at 460, 86 S.Ct. at 1620.

Third, substantive use of silence impairs the privileges "preference for an accusatorial rather than an inquisitorial system of criminal justice." Murphy, 378 U.S. at 55, 84 S.Ct. at 1596-97. In this respect, the privilege "prohibits `the prosecutor's use of any language or other device which compels a defendant to testify.'" Waldrop v. Commonwealth, 23 Va. App. 614, 622, 478 S.E.2d 723, 726 (1996), rev'd on other grounds, No. 970160, ___ Va. ___, 495 S.E.2d 822 (Va. 1998) (quoting State v. Pierce, 231 Neb. 966, 439 N.W.2d 435, 444 (1989)); cf. Miranda, 384 U.S. at 461, 86 S.Ct. at 1620-21. To allow the Commonwealth to prove that the appellant admitted his guilt by remaining silent in response to police questions effectively burdened the appellant's trial right not to testify because of the adverse inference that would be drawn from his failure to respond to the prosecution's evidence of his silence. Cf. Waldrop, 23 Va. App. at 623, 478 S.E.2d at 727 (upholding prosecutor's pre-evidentiary comment which "neither raised the expectation in the jury's mind that appellant would testify nor challenged the jury to notice and possibly draw an inference from whether or not appellant testified").

Moreover, to permit the Commonwealth to prove that the appellant tacitly admitted his guilt by remaining silent is tantamount to allowing the Commonwealth to derive an involuntary admission of guilt from the appellant. To accord a suspect less protection where he exercises the basic and fundamental right to not speak in response to non-custodial questions, when the constitutions protect the right to remain silent in a custodial situation, would be illogical. By allowing the jury to decide that the appellant's silence was an admission of guilt, the Commonwealth, in effect, "compelled" him to provide incriminating testimony at trial. When the appellant remained silent and did not speak to Deputy Inge or testify at trial, the Commonwealth was allowed to prove that he nonetheless admitted ownership of the handgun. See Miranda, 384 U.S. at 460, 86 S.Ct. at 1620 (quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964)) (holding that privilege provides fundamental guarantee of "the right to `remain silent unless he chooses to speak by his own will'"). We can think of few other techniques that would bring to bear this degree of direct compulsion on a criminal defendant to "speak his guilt" before the jury. See Doe, 487 U.S. at 213, 108 S.Ct. at 2349 (holding that Fifth Amendment serves "to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense" (emphasis added)).

In summary, we find that the government's interest in using the appellant's pre-arrest silence in response to a police officer's question as substantive evidence of guilt is substantially outweighed by the burden which such practice imposes on the privilege against self-incrimination. Accordingly, we hold that the Commonwealth's substantive use of the appellants silence impermissibly burdened the appellant's exercise of his privilege against compelled self-incrimination under Article I, Section 8 of the Virginia Constitution and that the trial court erred by admitting the evidence.

Because the trial court's admission of the evidence was constitutional error, we consider whether such error is harmless beyond a reasonable doubt. See Scaggs v. Commonwealth, 5 Va. App. 1, 6, 359 S.E.2d 830, 832 (1987). When an appellant's constitutional rights have been violated, we will reverse his conviction unless the Commonwealth proves that any constitutional error was "harmless beyond a reasonable doubt." Schrum v. Commonwealth, 219 Va. 204, 213, 246 S.E.2d 893, 899 (1978) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); see Mason v. Commonwealth, 7 Va. App. 339, 348, 373 S.E.2d 603, 608 (1988). The Commonwealth has offered no proof or argument that proof of the appellant's silence as an admission that he possessed the handgun was harmless in this case, and we perceive of no basis for such a holding. Admission of the evidence goes to the ultimate issue of guilt. If the jury considered the appellant's silence to be an admission that he owned the gun, which they were permitted to do, then the evidence was prejudicial. Therefore, the trial court's admission of the appellant's silence was reversible error.

For the foregoing reasons, we reverse the appellant's conviction and remand the case for a new trial consistent with this opinion.

Reversed and remanded.