Concurring in Result Only.
First of all, I concur with the majority that, in both Barker and Jones, the trial court did not have to wait upon a conviction for new charges before proceeding to a hearing and revocation of probation based upon the commission of additional offenses. I furthermore agree in the result of our decision to uphold the revocation of Barker’s probation, but I disagree with the reasoning. By implication in Barker, and by direct holding in Jones, this Court — for the first time to my knowledge — invests the courts with the prosecu-torial function of immunity for criminal defendants.
I respectfully, but strongly, disagree from that part of the majority opinion which establishes use immunity’ for defendants in revocation hearings. I dissent on three grounds: (1) to invoke our supervisory power to establish a new rule of evidence and procedure invades the rule-making procedure of this Court; (2) to do so is a violation of our separation of powers and blatantly against our state constitution; and (3) the issue at hand is of insufficient importance to the criminal defendant to merit such an extraordinary action by this Court.
I. Supervisory Power of the Court
Unable to find ample authority under Fifth Amendment cases, the majority goes searching for another way to reach the intended aim. We choose to do this through the misapplication of the “supervisory power” of our Court.
Our majority reference Sections 110, 115, and 116 of our state constitution “in conjunction” as the source for our authority to do what it wants done in this case. With all due respect, I find nothing in Section 115 that is germane to the discussion of our “supervisory power.” It deals only with the rights to appeal. We must then turn to the other two sections cited.
Section 110(2)(a) of our constitution states as follows:
The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice. (Emphasis added.)
Any “supervisory power” granted under this section is obviously for the administration of our Court of Justice. The words “control” and “administration” are practically interchangeable. There is no way to read this constitutional provision to authorize us to invade the procedural or evi-dentiary working of criminal trials.
Therefore, I am left to assume that the majority’s use of “supervisory. power” of the Court is rooted solely in Section 116— the Court’s rule-making authority. Section 116 of our state constitution states:
The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar. (Emphasis added.)
It’s critical to point out that this constitutional mandate does not authorize us to fulfill this purpose through “orders” or “opinions,” but by rules. We do it here *132today by our opinion. By our opinion, we introduce a blanket rule of evidence into the trials of criminal cases. By our opinion here today, we — by bald judicial edict — cloak witnesses with use immunity.
The majority cites no previous holding by this Court to support its wide-ranging rule. It simply draws from the writing of Justice Leibson in his dissent in Commonwealth v. Hubbard, 777 S.W.2d 882 (Ky.1989). I draw from his writing also to support this dissent. His writing, in Hubbard, deals with two issues. The first one in which he beckons the use of “supervisory power” deals with whether private attorneys should be allowed to prosecute crimes in the courts of our Commonwealth. It has nothing to do with a procedural or evidentiary ruling, but simply who should be allowed to prosecute criminal cases in our courts. Justice Leibson criticizes the majority as to the second issue, however, where it allows judges to impose the sentence where juries are deadlocked. He states that to do so is outside of its authority and, by implication at least, outside its “supervisory power.”
I borrow Justice Leibson’s exact words: Before undertaking such a change we should follow our carefully conceived, established policy for rule change. This includes a study and recommendation by the Supreme Court Committee on Criminal Rules, followed by a public hearing at the Kentucky Bar Association Annual Convention, before changing the rules. I disagree, not so much with the change, but with the precipitous nature by which we have accomplished it.
Hubbard at 887.
After our “precipitous” ruling here today, we no longer need the ponderous, labor intensive and time-consuming procedure of establishing our Rules of Criminal Procedure, Rules of Civil Procedure, or Rules of Evidence. We may from this day forth simply issue them under our “supervisory power.”
The adoption of use immunity by this Court in probation revocation hearings is a monumental sea change for prosecutors of this state. They deserve to be heard.
II. Separation of Powers
Our Court today declares:
The judicial rule we adopt today protects probationers who testify at revocation hearings when their testimony relates to new crimes. “And the trial court hearing the probation revocation must advise probationers that any testimony related to new crimes given during a revocation hearing cannot be substantively used in a future criminal proceeding.” (Emphasis added.)
For the very first time in the history of the Commonwealth, to my knowledge, the judge is now ordered to step down from the bench and take on a prosecutorial function — offering use immunity.
Our state constitution — often maligned but still obeyed — is much more explicit about the value of the separation of powers in democratic government than its federal counterpart. Two separate provisions drive the principle home.
First is Section 27:
The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
The U.S. Constitution has no comparable provision. Neither, for that matter, does Alaska, a state which provides the majority its main case for support and inspiration.
*133Our drafters of the state charter spoke directly to the issue before us in Section 28:
No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
This Court has repeatedly paid judicial homage to this revered division of authority in a string of cases driving the point home. Flynt v. Commonwealth, 105 S.W.3d 415 (Ky.2003); Hoskins v. Maricle, 150 S.W.3d 1 (Ky.2004); Gibson v. Commonwealth, 291 S.W.3d 686 (Ky.2009).
Immunity from prosecution and the basis for prosecution is strictly an executive action and may be granted by the government in exchange for a person’s testimony. Black’s Law Dictionary 819 (9th ed.2009) defines “use immunity” as “[ijmmunity from the use of the compelled testimony ... in a future prosecution against the witness.”
Courts do not have jurisdiction over what the executive branch does in terms of whom and how to prosecute. They only have jurisdiction over criminal charges properly brought before them by way of warrant or indictment. That jurisdiction exists, for instance, in the case of the defendant’s right to limited cross-examination in suppression hearings. Shull v. Commonwealth, 475 S.W.2d 469 (Ky.App.1971). In such cases, the defendant can take the stand to contest the validity of a search without being subjected to cross-examination on the principal charge. This, however, is a Fifth Amendment and Section 10 issue — or maybe even a relevancy matter. It is not immunity.
There is federal statutory authorization for prosecutors to grant immunity to witnesses who refuse to testify. 18 U.S.C.A. § 6003. The federal courts have done heavy duty in keeping the trial judges out of the immunity business. There is a long line of cases proclaiming that courts cannot confer immunity upon a witness on their own initiative. U.S. v. D'Apice, 664 F.2d 75 (5th Cir.1981); In re Corrugated Container Antitrust Litigation, 644 F.2d 70 (2nd Cir.1981); U.S. v. Davis, 623 F.2d 188 (1st Cir.1980); U.S. v. Smith, 542 F.2d 711 (7th Cir.1976); Thompson v. Garrison, 516 F.2d 986 (4th Cir.1975).
III. Our Wide-Ranging Ruling is Without Justification
We operate under the cherished notion that a defendant is presumed innocent until proven guilty. In pursuit of that idea, we have cloaked the criminal defendant with a wide array of constitutional and statutory rights, which hopefully minimizes or eliminates the possibility of an innocent person being convicted. There is a line, however, between the rights of defendants and the protection of the public. In spite of the notion harbored by many, a defendant’s right against self-incrimination is not woven into the whole cloth of due process. Even under the broad and liberal Fifth Amendment holdings of the U.S. Supreme Court, this constitutional right does not make a stop at every procedural crossroad. Braswell v. U.S., 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988); U.S. v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); Bellis v. U.S., 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
With all due respect, in the decision today this Court legislates. We do not enforce an existing right for the defendant. We create a new one out of the whole cloth under our “supervisory power.”
The majority boldly states:
*134Although we do not reach the determinative constitutional issues as did the Court of Appeals, we do find that probationers who choose to testify at the revocation hearing are entitled to a modified privilege against self-incrimination in the form of an exclusionary rule.
In establishing our own new “exclusionary rule” out of our “supervisory-power,” we not only step across the line of the separation of powers, but we create a new right for the defendant at the expense of the people of Kentucky.
It is mystifying as to why the majority wishes to run so far out of the base line for a ruling in which the defendant — in the regular course of things — does not have that much at stake. In 98% of the revocation hearings where the defendant takes the stand, he or she simply denies any wrongdoing or offers mitigating evidence. By the nature of testifying in their own defense, defendants do not incriminate themselves. In all my years presiding over these proceedings, I do not recall one withering cross-examination where the defendant broke down and offered incriminating evidence of another crime. However, in the very small percentage of cases where that might happen, the evidence could be critical to the Commonwealth in obtaining a conviction of a serious crime.
Lastly, there is another disturbing consequence of the majority opinion which I cannot abide. Our ruling here today blocks Kentucky prosecutors from ever using valuable evidence in the prosecution of serious crimes which might have been elicited from convicted felons testifying voluntarily, and with the aid of counsel, at revocation hearings. But the prosecutors just across the state line in Stewart County, Tennessee will not be so impaired. Such a ruling places our people in Kentucky with less protection than that which is afforded in 49 other states in the Union.
I have an unsettling feeling that somewhere down the line — maybe next year, maybe ten years from now — this decision will come back to haunt us. It will be used to protect a murderer from prosecution and conviction. Or it will be used by this Court to make another evidentiary and procedural ruling based on our “supervisory power” without the appropriate rule-making procedure.
I vote to affirm in Barker and reverse in Jones and uphold the trial court’s decisions in both.
SCHRODER and SCOTT, JJ., join.