On October 31, 1974, defendant was convicted by a jury in Barry County Circuit Court of possession of marijuana with intent to deliver, contrary to MCL 335.341(1)(c); MSA 18.1070(41)(l)(c). The case was subsequently appealed to this Court, People v Jerry Johnson, 68 Mich App 697; 243 NW2d 715 (1976), and re*432manded for a hearing pursuant to People v Robinson, 391 Mich 555; 218 NW2d 1 (1974). The record reveals that the prosecution failed to produce a res gestae witness whose testimony could have been relevant to important issues disputed at trial.
Upon remand, the missing res gestae witness was located and a hearing was held for the purpose of taking his testimony on September 3, 1976. After the hearing, the trial court ruled that the missing witness’s testimony was merely cumulative and, hence, defendant was not entitled to a new trial. Defendant appeals, contending that the trial court erred in ruling that the testimony of the missing witness was cumulative.
We agree with defendant. At the hearing upon remand the formerly missing res gestae witness invoked the Fifth Amendment on four occasions. On key questions his testimony was evasive. The transcript is illustrative:
"Q. [Mr. Wickett, defense counsel] It’s very simple. Question: You were there Sunday. Did you see that bag of marijuana there at that time?
"A. Mr. Wickett, I already asked you once. I said I really would have to advise my attorney over this case, because it’s getting involved.
"THE COURT: Mr. Magnum, I don’t think that your answer to that question would incriminate you, so I direct you to answer.
"THE WITNESS: Well, I think I have my own rights too, and to an attorney don’t I?”
"Q. Do you know how much that cost?
"A. Well —
"THE COURT: Again, your answer to this possibly could' incriminate, so I don’t know, so I instruct you again that you may not answer.
"THE WITNESS: I ain’t going to answer that.
"Q. (By Charles Wickett) Did you contribute any *433money towards its purchase? Again you should ask the Judge.
"THE COURT: Again, your answer might tend to incriminate you so have that in mind before you answer.
"THE WITNESS: I am not answering no more questions.”
We are convinced — and strongly so — that had the jury heard at trial the same testimony as the witness gave at the Robinson hearing, had the jury viewed and heard the witness’s evasiveness on the key question of the transaction forming the basis for the conviction, had defense counsel been able to impeach the witness for a prior conviction of receiving stolen property,1 the jury verdict may well have been different. Because the witness was not called by the prosecution the jury did not hear the testimony. In effect, the defendant was denied a fair trial. This being so, and but for People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977), the proper procedure in this case would be a new trial.
Does Giacalone preclude a new trial? The people argue that the answer is "yes” since Giacalone holds that where either the prosecution or defense knows a witness will assert his Fifth Amendment rights it is error to call such witness.
"The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
" — 'knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence’;
" — 'to call a witness who he knows will claim a valid *434privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.’ ” Giacalone, supra, at 645.
We are not persuaded that Giacalone goes so far. There, the prosecutor called as a witness an accomplice, whom the prosecutor knew in advance would take the Fifth. In that case, assertion of the Fifth Amendment rights was highly prejudicial to the defendant. Here, the situation is reversed since here the witness’s resort to remaining silent, if anything, helps the defendant and prejudices the plaintiff. For these reasons, Giacalone is clearly distinguishable. In our initial opinion in this case, People v Jerry Johnson, 68 Mich App 697; 243 NW2d 715 (1976), we held that the failure to call the missing res gestae witness was sufficient error to mandate remand. Now, on remand, it is quite clear to us that the witness’s testimony may well lead to a different verdict. This being so, the testimony is clearly more than cumulative. Accordingly, we reverse the trial court and remand for a new trial.2
Reversed and remanded for a new trial.
R. B. Burns, J., concurred.At the Robinson hearing the witness indicated that he had a prior conviction for receiving stolen property.
On April 19, 1977, execution of defendant’s sentence to prison for 18 months to 4 years was stayed by the trial court pending the outcome of the present appeal.