(dissenting):
I
At trial the defense counsel submitted to the military judge a requested instruction *69on reasonable doubt. This requested instruction was phrased in terms of “hesitate to act” and contained no reference to “substantial” doubt. When the military judge indicated that he would not give the requested instruction, but instead would give a standard instruction on reasonable doubt, the defense counsel called to his attention that there were “certain federal cases” indicating that an instruction on reasonable doubt should be phrased in terms of “hesitate to act,” rather than “willing to act.” Nonetheless, the military judge gave his standard instruction in terms of willingness to act and “substantial doubt.”
Since the trial of the case at bar preceded our decision in United States v. Salley, 9 M.J. 189 (C.M.A.1980), the error in the instruction would not concern us if defense counsel had made no objection thereto or had not requested clarification. However, here he did make a suitable objection, as Judge Cook has noted in his separate opinion. Accordingly, under the law established by our Court, appellant is entitled to relief unless we conclude beyond a reasonable doubt that under the circumstances of the case he was not prejudiced by the instruction. United States v. Brooks, 11 M.J. 420 (C.M.A.1981); United States v. Cotten, 10 M.J. 260 (C.M.A.1981).1
Insofar as prejudice is concerned, the recital of facts in the opinion of the Court of Military Review, United States v. Martin, 9 M.J. 731 (N.C.M.R.1979), should make it clear that if an instructional error in defining reasonable doubt is ever to result in reversal of a conviction, it should do so in the present case, where the prosecution was based on hotly disputed circumstantial evidence.
II
The Government offered the expert testimony of a forensic odontologist to establish that a bite mark made on the deceased’s body at about the time of her death had been inflicted by her husband, appellant. As noted by the Court of Military Review, scientific testimony concerning bite marks has been allowed by many courts under similar circumstances. On the basis of these precedents and the testimony of three forensic odontologists offered during an Article 39(a), 10 U.S.C. § 839(a) session, I agree with the trial judge that this evidence was admissible.
The prosecution also offered evidence that appellant habitually bit on his tooth brush or other inanimate objects during periods of stress or tension. In turn, trial counsel in his argument on findings suggested to the court members that, in a similar manner, appellant, under the stress of strangling his wife, had bitten her and thereby left the bite mark on her body. If an expert had testified as to such a relationship between appellant’s habits of biting and chewing on inanimate objects and a propensity to bite human beings, this evidence would be marginally admissible. Without being connected in this manner, this “evidence ... is too remote to have any appreciable probative value,” para. 137, Manual for Courts-Martial, United States, 1969 (Revised edition) (discussing relevance); so it should not have been received. However, I doubt that its reception in this case — even though erroneous — created any substantial risk of prejudice to appellant.
III
In the course of an Article 39(a) session, it appeared that a proposed defense witness, Corporal Hodge, would not testify because of a claimed privilege against self-incrimination. Hodge, who lived in another apartment in the building where appellant and the deceased had resided, apparently had been listed as a suspect at some point during the homicide investigation; he had also claimed his privilege against self-incrimination during the Article 32, 10 U.S.C. § 832 investigation. After ruling that Hodge had a valid claim, the military judge-in a commendable effort to assure *70that all relevant evidence would be available to the court-martial in deciding the case — asked trial counsel to contact the convening authority about granting testimonial immunity to Hodge. Subsequently, trial counsel reported that he had apprised the convening authority of the situation but that, after consulting with his staff judge advocate, the convening authority had refused to grant such immunity and had ordered the trial counsel to “continue to march.” Accordingly, the trial proceeded without the testimony of Corporal Hodge.
Obviously, the members of the Court of Military Review were concerned about the situation which resulted. Judge Root wrote an extensive concurrence on the subject; upon reconsideration, the court below modified its opinion on the immunity issue, although it felt compelled to affirm. Utilizing the rationale set forth in my dissent in United States v. Villines, 13 M.J. 46 (C.M.A.1982), I conclude that this decision was erroneous.
In the first place, not only the convening authority but also the military judge had the authority to grant testimonial immunity to Hodge. Thus, the military judge — who was conducting the trial and was in the best position to evaluate the importance of Hodge’s testimony — should have himself ruled on whether testimonial immunity should have been granted. Indeed, it is fairly clear from the record that, if the judge had believed that he possessed the authority to immunize this witness, he would have done so.
Secondly, the convening authority’s decision to deny testimonial immunity was clearly erroneous. In Villines, I explained that, although a grant of testimonial immunity does not preclude prosecution of the immunized witness, it may constitute a significant impediment to such prosecution. Therefore, it should be granted very cautiously if the prosecutor represents to the court-martial that impediment of a prospective prosecution may result from granting immunity. However, in the case at hand, trial counsel gave no indication that the grant of testimonial immunity would disadvantage the Government in any way. Moreover, Hodge’s claim of immunity was with respect to the homicide for which appellant was being prosecuted. Since there was no suggestion at any time that Martin had acted jointly with Hodge, the decision to prosecute appellant was inconsistent with any likelihood that Hodge would be prosecuted.2 Thus, a grant of testimonial immunity to Hodge could not have affected the government’s ability to conduct any prosecution which was even remotely likely to occur.3
Because of the pervasive confusion about the status of testimonial immunity in military justice,4 I do not criticize the military judge or the convening authority for the error that occurred in failing to grant testimonial immunity to Hodge and compelling him to testify. Nonetheless, appellant should not be the victim of that error by being denied the benefit of testimony from a very material eye witness.
IV
“[H]ard cases make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (Holmes, J., dissenting). Admittedly, there is reluctance to require another trial for an accused whom conscientious court members have convicted of murder after a lengthy trial. However, the errors committed here are major enough — especially when considered together — to require setting aside the findings of guilt and requiring a rehearing or dismissal of charges.
. In both of these cases Judge Cook dissented; but, since there is no majority to overrule these precedents, they remain the law of our Court.
. Nonetheless, Corporal Hodge’s proximity at the estimated time of the homicide and various other circumstances were more than enough to justify the military judge’s ruling that he had validly asserted a claim to the privilege against self-incrimination. Interestingly, prior to trial appellant had passed several polygraph tests which purported to exonerate him, while a polygraph test of Hodge had apparently indicated some deception.
. The situation is quite different from the more typical one, exemplified by United States v. Villines, 13 M.J. 46 (C.M.A.1982), where the defendant and the witness seem to have been jointly involved in an illegal venture.
. In this connection, see my dissenting opinion in United States v. Villines, supra.