¶1concurring and dissenting. I would affirm on point III but because I disagree with the Court’s reasoning there, I write separately. I respectfully dissent on points I and II.
¶2I.
¶3The Court’s rationale for justifying admission of the hearsay to prove the victim-patient was conscious is remarkable for what it omits. The patient’s telling to head nurse Jean Herrick consistent accounts of how defendant treated him not only proved the patient was conscious, it tended to prove exactly what the prosecutor argued to the jury: “He would tell you just the same thing as what Lena Fasser told you.” Lena Fasser, a nurse’s aid, testified about the sadistic details of defendant’s abuse of the patient. The jury would have well understood that had the patient’s answers to Herrick’s questions not implicated defendant in the crime, Herrick would not have testified for the State. In fact the testimony left no doubt about the content of the patient’s communication. The questioning of Herrick began by the State asking her when and from whom she first learned of the “allegations of events involving” defendant and the patient, and then continued:
Q. And you testified earlier that you visited [the patient] regularly. When you visited him did you speak with him?
A. Yes.
Q. And could he respond to you when you spoke with him?
A. Yes.
Q. How did he manage his part of the conversation?
A. He couldn’t speak words because he had a tracheotomy. He was very expressive facially and with his hands.
Q. Did you ever speak with him regarding these allegations that Lena Fasser had made to you?
A. Yes.
Q. And were [the three] conversations [with the patient] substantially different or did each one proceed pretty much the same way?
A. Pretty much the same way.
Q. And why did you talk to him so many times?
A. I wanted to make sure that he was able to have an understanding of what was going on and be able to say the same things.
*47Q. What was [the patient’s] demeanor like when you talked with him in these conversations?
A. Sad.
Q. Did his demeanor change as you talked?
A. Yes.
Q. And in what way did it change?
A. He would become excited, trying to get me to understand something he wanted me to understand. He would become excited.
Q. Now, without telling me anything that [the patient] said how did you begin the conversation?
A. Letting him know that I wanted to talk to him.
Q. And what kind of things did you talk to him about?
A. Why he was sad.
Q. And did you ask him any questions specifically regarding Miss Fasser’s allegations?
A. Yes.
Q. And what were those questions?
A. Did something happen to him? Did it happen at the hospital? Did it happen in the daytime? Did it happen in his room? Was the person wearing blue clothes?
Q. Did you ask him any questions specifically directed to determining what if anything had happened to him?
A. Yes.
Q. And what were those questions?
A. ... Were you punched, were you slapped, were you hit, were you restrained, were you tied down?
Q. Did he provide specific answers to these questions?
A. Yes.
Q. And how did he communicate those answers? Not telling me what he said, but what was his manner? How did he get it across?
A. Hand gestures, facial gestures, mouthing words.
Q. Did he provide consistent answers from one time to the next during those three conversations you had with him?
*48A. On some of the information, yes.
Q. And the things that he said that were consistent from one time to the next, were they also consistent with what Lena Fasser had told you and with your personal knowledge of the hospital?
THE COURT: I just don’t think that’s admissible.
THE STATE: I’ll move on, Judge.
¶4The court stopped the line of questioning, but the jury had already gotten the point. Yet, the State was not content to stop and proceeded.
Q. The matters that you were discussing with [the patient] in these conversations that you had with him did they have implications for the way that the nursing staff would care for him?
A. Yes.
Q. What were the implications?
A. Were people following procedure and safety? If people were not following procedure what would be the implication? Need for education.
Q. And what would the implications for safety have to do with it?
A. For the patient. Was the patient put in a safe environment and were we providing a safe environment?
Q. Would his answering affect how you went about providing that safe environment?
A. Possibly.
Q. If he told you one thing would you respond a certain way and if he told you another thing would you respond a different way?
A. Yes.
DEFENSE COUNSEL: May we approach the bench?
THE COURT: Not yet. I can already tell you what the answer is. If there’s going to be an objection it will be sustained.
DEFENSE COUNSEL: We’ll object then.
¶5At that point, the State turned to another subject.
¶6It is hard to tell what the Court thinks of this evidence conceded by the parties and recognized by the trial court as hearsay. The Court states: “[E]vidence of a victim’s state of mind is admissible to prove an element of the crime.” That may be true, but the end does not justify the means. The only exception to the hearsay rule allowing *49such evidence is V.R.E. 803(3). Rule 803(3), however, applies only to “then-existing” states of mind:
A statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as . . . mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed....
¶7V.R.E. 803(3) (emphasis added). Consequently, though relevant, the evidence is nevertheless inadmissible hearsay.
¶8II.
¶9I profoundly disagree with the principle of governing law expressed in part II. On a related issue, I had my say as the lone dissenter in State v. McElreavy, 157 Vt. 18, 27, 595 A.2d 1332, 1337 (1991) (Morse, J., dissenting) (failure to attend civil deposition noticed to ask defendant about his involvement in arson was not relevant evidence of defendant’s guilt in criminal case). McElreavy, however, does not control here.
¶10McElreavy’s “silence” in failing to attend the deposition was at best equivocal. He may not have attended because he wished to remain silent, which was his Fifth Amendment right. It is not more likely that a guilty person will remain silent in the face of an accusation than an innocent person. We knew as much at least thirty years ago, when it was said, “[T]he privilege, while sometimes a ‘shelter to the guilty,’ is often ‘a protection to the innocent.’” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964) (quoting Quinn v. United States, 349 U.S. 155, 162 (1955)).
¶11Here, when defendant was confronted by her supervisor, she said, “Should I get a lawyer?” — which is, I submit, the rhetorical way under the circumstances of asserting the right to remain silent. The Court agrees that is what the words mean. Had defendant not uttered a single word when confronted by her supervisor, McElreavywould control.
¶12Griffin v. California, 380 U.S. 609, 615 (1965), held that “the Fifth Amendment. . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Hence, neither the prosecution nor the judge may suggest to the jury that defendant’s silence is substantive evidence of guilt. Otherwise, defendant would suffer a penalty for exercising the right. This rationale extends to prearrest silence, which under federal law may be offered in a criminal case for the limited purpose of impeaching the credibility of the defendant. See Jenkins v. Anderson, *50447 U.S. 231, 238-39 (1980) (Fifth Amendment self-incrimination privilege not violated when prosecution impeaches defendant with prearrest silence). No United States Supreme Court case has permitted a suspect’s prearrest silence or assertion of the privilege to be used as substantive evidence of guilt. See Coppola v. Powell, 878 F.2d 1562, 1563, 1566, 1568 (1st Cir.) (defendant’s prearrest statement in response to noncustodial interrogation, “if you think I’m going to confess to you, you’re crazy,” was invocation of Fifth Amendment and inadmissible evidence against defendant), cert. denied, 493 U.S. 969 (1989).
¶13Contrary to the Court’s view, the right against “self-incrimination” operates prospectively even if invoked in a private setting. One always has a right not to incriminate oneself even though the criminal proceeding has not yet been instituted. The right is not merely contemporaneous with the trial.
¶14If all of this is not clear, V.R.E. 512(a) explicitly forbids comment on defendant’s invocation of the privilege, no matter when invoked. It states: “The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.” (Emphasis added.) Vermont could not provide a plainer rule. Under today’s ruling, I fear, prosecutors may routinely introduce evidence that defendant did not come forward and speak after being implicated in a crime.
¶15Under the Court’s view, defendant was faced with a dilemma when her employer confronted her with misconduct. She could have talked about it, which would have been admissible evidence against her. She could have said nothing, which would have been admissible evidence against her. Or she could, as she did here, invoke her constitutional right to remain silent, which under today’s ruling is admissible evidence of guilt against her at trial. These choices leave a suspect no Fifth Amendment protection at all. Ironically, the fact that defendant here did invoke her privilege was used to arouse prejudice against persons who “plead the fifth.”
¶16III.
¶17The Court analyzes, under “our plain error standard,” defendant’s contention that the State’s failure to give V.R.Cr.P. 26(c) notice requires a new trial. In my view, no error was committed. The State was not required to give notice under V.R.Cr.P. 26(c). Not every “act,” ‘bad” or otherwise, committed before or after the alleged offense is *51subject to Rule 26(c). Rule 26(c) refers only to V.R.E. 404(b) evidence, that is, evidence of “other crimes, wrongs, or acts” relevant to prove conformity with a particular character trait. Thus, evidence relevant, although inadmissible, to show that defendant “acted in conformity therewith on a particular occasion,” V.R.E. 404(a), may be admitted under Rule 404(b), if relevant for “other purposes.” In other words, evidence that is relevant to prove that a person acted in conformity with a particular character trait and therefore inadmissible may be admitted if it is relevant for another reason. Rule 26(c) simply requires notice when the State intends to take advantage of V.R.E. 404(b). V.R.E. 404(b) did not apply in this case because the evidence that defendant threatened a witness, although relevant to her character as a bad person, was not relevant for the purpose of proving that she acted in “conformity therewith” when she allegedly molested the patient.
¶18Intimidating a witness may be obstruction of justice, but it has no bearing on how a nurse treats a patient on a particular occasion. Rather, the evidence was introduced as tending to prove defendant’s consciousness of her guilt because she attempted to frighten a witness from testifying against her. This evidence was no different than evidence of “flight” or destroying evidence to escape punishment. We hardly require V.R.Cr.E 26(c) notice for the State to introduce such evidence. On the other hand, had the State sought to prove that defendant abused other patients, notice under V.R.Cr.E 26(c) would have been required.
¶19For the reasons stated in points I and II, I would reverse and remand.