(dissenting):
I respectfully dissent for several reasons.
First, I agree with the view expressed by then Judge William H. Cook in United States v. Villines, 13 M.J. 46, 56 (C.M.A.1982) (concurring in the result), that the decision to grant transactional or use immunity should be left in the hands of the Executive Branch. When the Government seeks to go forward with prosecution of an individual who has been granted use immunity, “the prosecution [has] the affirmative duty to prove that the evidence it proposes to use is derived from a legitímate source wholly independent of the compelled testimony.” Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972). As a result of this heavy burden,
only the exceptional case can be tried after a grant of testimonial immunity. The burden of the Government is indeed heavy — so much so that, except in rare cases, the Department of Justice has established the policy of avoiding prosecution of immunized witnesses as to matters they disclose.
United States v. Rivera, 1 M.J. 107, 111 n. 6 (C.M.A.1975).
I totally and unequivocally divorce myself from any suggestion by Chief Judge Everett in either this opinion or his dissent in United States v. Villines, supra at 62, that a military judge has the authority to grant a witness any kind of immunity. My belief has nothing to do with concern as to whether a military judge could wisely exercise discretion in this regard. Rather, I am convinced that the decision to prosecute, under what conditions, and with what evidence is an executive decision, not a judicial one. See United States v. Pennell, 737 F.2d 521 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). The United States Supreme Court has exacted a high price for a grant of immunity, regardless of which governmental entity makes the grant. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Must the Government pay such a price for immunity granted over its objection? I say NO!
Moreover, an accused is not without a remedy when the Government refuses a defense request for a grant of immunity. The military judge does possess the authority, indeed is charged by his oath, to insure that the accused gets a fair and impartial trial. I agree with Chief Judge Everett, as did Judge Cook in Villines, that the military judge can “abate” or continue the proceedings until the privilege is lost or the Government is willing to grant immunity. This is an extraordinary remedy, however, *138and should be exercised by the military judge only when the conditions set forth in R.C.M. 704(e) are clearly met.
As R.C.M. 704(e) was not in effect at the time of this trial, however, it is not controlling. I observe that even the Court of Appeals for the Third Circuit in applying the minority view espoused in Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), has recognized that the prosecution has a reason for denying immunity to a witness whom “it may yet prosecute.” United States v. Lowell, 649 F.2d 950, 965 (3d Cir.1981). I have been unable to find any other court that would apply such a liberal rule as we now have in R.C.M. 704(e). Be that as it may, I have no quarrel with giving the military judge some discretion to decide if a fair trial cannot be had unless a witness is immunized.
If there is any other adequate substitute in the record for the so called “immunized testimony,” however, as a matter of law the testimony of the witness would not “be of such central importance to the defense case that it is essential to a fair trial.” R.C.M. 704(e)(1). Certainly, I would not permit defense counsel to go on a fishing expedition, hoping upon hope that the immunized witness will make a judicial confession exonerating his client. The defense must be able to establish that the expected testimony will be clearly favorable to it. In some cases, the evidence that convinces a judge of the existence of such expected testimony will, itself, be an adequate substitute for the immunized testimony.1
This case is an example of what I mean. Defense counsel represented to the judge that if Gomez were given immunity he would testify that he was driving the car on the night in question. This “offer of proof” was based upon a declaration against penal interest made by Gomez shortly after the accident. Sergeant Griffin, a military policeman, testified that, after he arrived at the scene of the accident, he specifically asked Gomez, “Were you driving?” Gomez responded, “Yes, I was driving.”
Assume that Gomez now takes the witness stand. He can testify to one of three things: He was driving; he was not driving; or he does not remember.2 If he testifies that he was driving, then his testimony is not essential as it is cumulative of that of Sergeant Griffin. If he testifies that he was not driving or that he does not remember, then the testimony is not exculpatory. Because his testimony was already before the court through the testimony of the military policeman, it was no longer of “central importance.”
I am also disturbed by the remedy fashioned by the majority opinion. This trial took place in March 1984, some 3 years ago. There is nothing in the record to suggest that Gomez is still in the military. If he is not, who will authorize a grant of immunity? See R.C.M. 704(c)(2). This may be a Murphy v. Waterfront Commission, supra, situation in reverse. Does the United States Court of Military Appeals have any authority to order a civilian to testify if *139that civilian elects to exercise his Fifth-Amendment rights? What are we asking the military judge to accomplish in a Du-Bay hearing? Can the military judge order a civilian to give up his Fifth-Amendment right?
But most importantly, even if Gomez is found, agrees to testify, and testifies that on the night in question he was driving the car, that testimony is not only cumulative, but has already been found to be incredible. As concluded by the Court of Military Review, “[t]he physical evidence establishes that Gomez could not have been the driver.” Unpub. op. at 3.
For these reasons, I would affirm.
. But see Mil.R.Evid. 804(b)(3) regarding exculpatory statements. See also S. Saltzburg, L. Schinasi, & D. Schlueter, Military Rules of Evidence Manual 681-82 (2d ed. 1986); 4 Weinstein’s Evidence § 804(b)(l)[06] at 804-103.
. Although acknowledging that *‘[t]he Government’s evidence against appellant was, indeed, substantial," Chief Judge Everett considers it supportive of his position that "only appellant and Gomez know for sure who was driving that night.” 24 M.J. at 136. That same circumstance has been persuasively portrayed as support for the government interest in denying immunity, as follows:
Stated quite simply, a contrary holding would likely render future convictions for crimes committed in the absence of eyewitnesses, virtually impossible. Any sole offender, A, would have only to End an individual, B, willing to confess to A’s crime aEer being granted immunity in order to plant a reasonable doubt as to A’s commission of the crime in a jury’s mind. A would be forever acquitted of the offense (double jeopardy) and B would be forever immune from punishment for the offense (particularly, when B actually never committed the crime). Assuming B never changes his story in the future, he is also immunized from any future peijury conviction, as the two witnesses necessary for such a conviction would not exist.
United States v. O'Bryan, 16 M.J. 755, 758 (A.F.C.M.R.1983) (Miller, J., concurring in the result), pet. denied, 18 M.J. 16 (1984).