dissenting.
I respectfully dissent.
The question is whether Fourteenth Amendment due process required that a certain portion of the defendant’s testimony at the civil proceeding be excluded from the criminal trial because it was involuntary and in violation of her right against self-incrimination.
Although appellant mentions the state constitutional provision as *351well as the Fifth Amendment self-incrimination clause, her argument is based on the federal standard, as it was in the trial court. Thus the case is not analyzed on the state constitutional ground, Ga. Const. 1983, Art. I, Sec. I, Par. XVI, which provides: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” Nor does appellant invoke as a ground the statutory standard, OCGA § 24-3-50, which properly should have been the first line of defense and the first inquiry, even before the State Constitution need be called to arms or addressed. For if a specific state statute provides the relief sought, it is not necessary to invoke the more general measurements of the constitutions. See Clarke, “Independent State Grounds: How to Win Through the First Door Out,” 23 Georgia State Bar Journal 183 (May 1987); Linde, “First Things First: Rediscovering the States’ Bills of Rights,” 9 U. Balt. L. Rev. 379 (1980).
As to the evidence complained of, although the majority refers first to what appellant alleged in her civil complaint, which allegations did embrace activity within the four-year statute of limitation, OCGA § 17-3-1 (c), that is not at issue. The complaint, which apparently was not sworn to by her, was not offered in evidence in the criminal trial. The hearing testimony which is at issue related to her complaint for paternity and child support for her son, who was seven years old (dob 5/13/80) when she filed the complaint on October 5, 1987. Any sexual relations she had with the father after the birth of the child were irrelevant to the issues in that case, as such would not affect paternity or entitlement to, or amount of, child support. Appellant’s other suit against the child’s father claimed incest as a tort, but the record contains nothing which would show that sexual relations within the statute of limitation were relevant in that suit either. It was filed on September 16, 1987, as recounted in Adcock v. State, 194 Ga. App. 627 (391 SE2d 438) (1990).2
Nevertheless, the court in a hearing on paternity and support, after first calling for the district attorney to listen in, required testimony from the petitioner and now criminal defendant concerning sexual intercourse from the time of the child’s birth to the most recent instance. This constituted confession of a crime (see Johnson v. State, 204 Ga. 528 (50 SE2d 334) (1948)), and was objected to on two bases, that counsel wished first to advise her of her rights against self-incrimination as to any still-indictable activity and that such evidence was unnecessary to prove her case. However, the court made its position very clear: if the Fifth Amendment right against self-incrimination were invoked, she “might just as well dismiss her lawsuit.”
*352During the course of the criminal trial, the court conducted a hearing to determine whether the confession was voluntary, because under the invoked Fourteenth Amendment, the use of involuntary or coerced confessions violates due process of law. Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). This occurred prior to introduction of that portion of the transcript of the civil proceeding which contained her confession. Her civil attorney testified that in preparing the civil paternity and child support action, he had advised Ms. Adcock that she would not have to admit the crime of incest as having occurred any time within the statute of limitation in order to make out the case, and he “would not allow her and she would not have to testify and incriminate herself.” He explained that then, as shown by the civil transcript, the court in that proceeding interrupted and asked her questions requiring self-incrimination, to which counsel objected as stated above. He testified that he attempted to invoke the Fifth Amendment privilege but that the judge “very vociferously and very emotionally told me that we weren’t going to have this [paternity and child support] case, that we weren’t going to be allowed to proceed with this case if we did claim the 5th Amendment. That was my understanding, and I felt the case was so vital, she had a child that was not being supported, she was almost financially destitute at that time, she could not support herself. ...” He said she had come to him “in a state of total psychological devastation.” On hindsight, he said he should have insisted on her privilege even if it meant his going to jail, but he felt intimidated by the court and did not want to give up the paternity and child support case.
Thus Ms. Adcock as civil petitioner was compelled to answer the court’s questions, not knowing that she could still invoke the privilege and that doing so would not legally affect the child’s right to support and a determination of paternity. The criminal court’s implied finding of voluntariness is clearly erroneous, which is the test to be applied to that finding when reviewed on appeal. Eady v. State, 182 Ga. App. 293, 298 (6) (355 SE2d 778) (1987). Unlike the circumstances in United States v. White, 589 F2d 1283 (5th Cir. 1979), which the court below relied on in ruling that the evidence was admissible, the civil trial judge, not defendant, instigated her testimony by calling her on his own motion and compelled it over valid objection, there was no indictment pending against her, and she was in effect told by the judge that the suit for paternity and child support would be lost unless she answered his questions.
Although it is true that defendant was represented by counsel at the time the civil court questioned her, counsel was not permitted to advise her of her self-incrimination rights with respect to the indictable period of time or of the consequences of refusing to answer. Moreover, the court “advised” her erroneously, that the consequences *353would be the preclusion of court-ordered support for the child. Counsel was deprived of the opportunity to argue that such testimony was irrelevant.
Decided March 11, 1993 — Reconsideration denied April 1, 1993 Lanser, Levinson & Paul, Christopher G. Paul, for appellant. Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.“The constitutional guarantee [against self-incrimination] is only that the witness be not compelled to give self-incrimination testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. [Cit.]” United States v. Washington, 431 U. S. 181, 188 (97 SC 1814, 52 LE2d 238) (1977). Here, the record reveals officially compelled self-accusation which was prosecutable and was prosecuted to conviction. It was compelled in that it was demanded by the court on pain of loss by the witness who was ignorant of the fact that she could claim the right without adverse legal consequences. Yet, as said in White, supra at 1287, “defendant must weigh the relative advantages of silence and explanation.” Although she may have understood that criminal action could follow, she was also told by the court questioning her that if she refused to answer, her attempt to get child support would be foreclosed. Such coercion tainted the confession so that its admission in the subsequent criminal trial, which is now before this court, deprived defendant of the due process of law guaranteed by the Fourteenth Amendment.
It should be pointed out that had defendant claimed the protection of our own statute, OCGA § 24-3-50, an analysis under the Fourteenth Amendment would have been moot. The long-standing statutory standard is that “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The pronouncement by the interrogating judge in the civil proceeding, of certain loss of economic relief should she choose not to respond, is more than a remote “fear of injury.”
I am authorized to state that Chief Judge Pope, Presiding Judge McMurray, and Judge Cooper join in this dissent.This is the date the State alleged it learned of the early intercourse in Count 1, so as to survive the statute of limitation, and likewise the date the State alleged as the last intercourse, in Count 2.