(dissenting).
I dissent.
Defendant-appellant Richard Lynn Peterson was convicted of possession with intent to deliver in violation of Iowa Code section 204.401(l)(d) (1991)1 and possession of a taxable substance without an excise stamp in violation of Iowa Code section 421A.12 (1991).2 Peterson contends his rights to due process were violated by the State’s intimidation of a defense witness, Tary McCarthy. I would reverse and remand for a new trial.
Peterson was riding in a car owned and operated by McCarthy when the car was pulled over for a seat belt violation and sub*823sequently searched. Three large bags of marijuana, as well as small quantities of other narcotics, were found hidden in the car behind the dashboard and in the trunk. Charges were filed against both McCarthy and Peterson. McCarthy entered into a plea to bargain, pled guilty, and was sentenced. As a part of his plea bargain, McCarthy signed an affidavit prepared by the county attorney stating he and Peterson both knew marijuana was in the car and intended to sell it. McCarthy was to testify later that he was told part of the plea agreement was he would not have to testify for the State or against Peterson.
Peterson elected to be tried by the court. The State, anticipating Peterson would testify at his trial, brought McCarthy, from where he was incarcerated, as a potential rebuttal witness. The county attorney talked to McCarthy during the trial, and McCarthy told the county attorney if he were called as a witness, he would give testimony inconsistent with his sworn affidavit. McCarthy testified after this conversation he knew if he testified the State would bring perjury charges against him.
The county attorney notified Peterson’s attorney McCarthy might provide exculpatory evidence. Peterson’s attorney interviewed McCarthy. After the interview, Peterson’s attorney was to tell the court he expected McCarthy to testify Peterson did not know the marijuana was in the ear and Peterson had no intent to deliver the marijuana.
Peterson called McCarthy as a witness. McCarthy said before he testified he wanted to consult with an attorney because he might be charged with perjury and he did not want to testify before he had that opportunity.
Then the following exchange occurred between Peterson and the court:
The Court: Did you give some statement about these circumstances under oath before?
McCarthy: Yes, I did, in a sense. I was given a plea agreement — more or less a plea agreement that I would not have to plead — or give witness evidence for the state or against Richard Peterson and consequently here I am having to, which will bring perjury charges.
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The Court: It is my understanding, Mr. McCarthy, that from the discussions that you’ve had with Mr. Jones that it may well occur that the questions — or the answers that you give to questions relating to that subject matter here today may be different than what’s contained in that affidavit? McCarthy: That’s correct.
The court appointed an attorney to represent McCarthy and, after McCarthy consulted with the attorney, he was questioned on the witness stand about whether Peterson knew there was marijuana in his car, and McCarthy declined to answer on grounds that it might incriminate him.
The court then asked the county attorney what the State would do if McCarthy testified as Peterson’s attorney expected he would, and the county attorney replied: “We have not promised to file perjury charges if he testifies. Our position is that if he testified today in material variance with Exhibit 101 [his statement] we would investigate filing perjury charges.”
The court then decided to allow McCarthy to assert his Fifth Amendment privilege. Later in the trial, McCarthy was asked by Peterson’s attorney if he had, when not under oath, made statements different than some of the statements in the affidavit. The county attorney said McCarthy, in answering the question, might subject himself to a charge of perjury, and the court again allowed McCarthy to invoke the Fifth Amendment.
McCarthy testified that, based on conversations he had with the county attorney and the attorney general, he understood he would be subject to prosecution for perjury if he gave testimony contrary to the affidavit.
After several more questions directed to Peterson’s knowledge of the drugs in the car, Peterson’s attorney asked the court grant McCarthy use immunity so he could testify truthfully in the trial or the trial court grant a mistrial because of prosecutorial misconduct. Peterson’s attorney advanced the prosecutors improperly obtained the plea and *824affidavit from McCarthy and threatened to charge him with perjury if his testimony differed from his prior statement.
The trial court refused to grant McCarthy use immunity and overruled Peterson’s motion for a mistrial. On appeal, Peterson renews his claims.
Peterson contends he was denied due process. Peterson raises a constitutional issue; therefore, I review de novo. See State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991).
Peterson first contends prosecutorial misconduct denied him due process. The question is whether the prosecutor violated Peterson’s right to present a defense. The right to offer the testimony of witnesses, and to compel their attendance is, in plain terms, the right to present a defense, the right to present the defendant’s version of facts as well as the prosecution’s to the jury so it may decide where the truth lies. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). An accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony and he or she has the right to present his or her own witnesses to establish a defense. Id. Substantial government interference with a defense witness’s free and unhampered choice to testify violates due process. United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977); United States v. Thomas, 488 F.2d 334, 335 (6th Cir.1973).
The Iowa Supreme Court clearly supports a defendant’s right to a fair trial and has held it is not proper to intimidate a witness. State v. Fox, 491 N.W.2d 527, 532 (Iowa 1992). And if the defendant is prejudiced3 as a result of the intimidation, then the defendant is deprived of his or her due process. State v. Ivy, 300 N.W.2d 310, 314 (Iowa 1981); see also State v. Hall, 235 N.W.2d 702, 712 (Iowa 1975). A prosecutor may impeach a witness in court, but he or she may not intimidate him or her — in or out of court. Ivy, 300 N.W.2d at 314.
The State argued McCarthy was not intimidated because he was only told some charges may follow, not that they would follow. The majority adopted this argument which is contrary to the holding of Ivy when a witness was told by the county attorney he might be charged with a criminal offense if he didn’t tell the truth and the court said of this conversation, “this witness was certainly threatened with criminal prosecution if he didn’t tell the ‘truth’.” Id. at 313-14.
I look, too, to Fox, 491 N.W.2d at 530 and 532, where the court found the county attorney’s statement to the witness’s attorney that if witness testified in a way inconsistent with the State’s belief about the events surrounding a shooting, the State would view the testimony as perjury and would promptly move to revoke the witness’s deferred judgment and probation, to be improper tactics. See also Henricksen, 564 F.2d at 198 (court found substantial government interference with the defense witness’s free and unhampered choice to testify violated due process where witness whose testimony would tend to exonerate the defendant as a part of a plea bargain had agreed not to testify and the government said if he did testify, the plea bargain would be void); Morrison, 535 F.2d at 230-31 (court found prosecutor’s repeated warnings to a prospective defense witness about the possibility of a federal perjury charge if she testified falsely after she had agreed to give testimony favorable to the defendant violated the defendant’s due process rights).
The testimony of the prosecutor and McCarthy make it clear McCarthy was told by the prosecutor he was under threat of criminal prosecution if he testified and his testimony was contrary to his affidavit. I find the prosecutor interfered with McCar*825thy’s free and unhampered choice to testify and, in doing so, violated Peterson’s due process rights.
However, before Peterson is entitled to a new trial, he must show he was prejudiced by the absence of the testimony. State v. Erving, 346 N.W.2d 833, 836-37 (Iowa 1984); Ivy, 300 N.W.2d at 314. In determining whether prejudice has resulted from prosecutor’s intimidating tactics, trial courts are afforded broad discretion. Fox, 491 N.W.2d at 532. In examining this issue, I make two inquiries. The first is, had it not been for the intimidation, would McCarthy have testified, and, second, if the testimony had been admitted, could it have changed the result of Peterson’s trial?
The statements in the record from both the attorneys for the State and for Peterson, as well as remarks made by McCarthy to the judge, can only support one conclusion, that being, it was McCarthy’s intention to testify, contrary to his affidavit, that Peterson had no knowledge of the drugs in the car.
The record is just as clear the reason McCarthy did not testify was because of the threat of possible perjury charges being brought against him by the county attorney. I find, but for the county attorney’s intimidation, McCarthy would have given testimony favorable to Peterson’s position.
My second inquiry is whether the evidence McCarthy would have provided could have changed the result of Peterson’s trial. McCarthy’s testimony Peterson did not know the drugs were in the car corroborates Peterson’s version of the facts. The large stash was hidden so it would not have been in Peterson’s view. The State, to convict Peterson, had to show beyond a reasonable doubt Peterson knowingly possessed the controlled substance and Peterson had a specific intent to deliver the controlled substance. McCarthy’s testimony clearly went to the heart of the issues in the case, Peterson’s knowledge and intent. McCarthy’s testimony refuted the State’s strongest evidence, that being, Peterson’s presence in the vehicle where the substance was found. I find, had McCarthy testified, the result of the trial could have been different. Peterson’s motion for mistrial should have been sustained.
Petersons second challenge is the trial court should have given McCarthy the requested immunity. Use immunity is an order of the court that compels a witness to give self-incriminating testimony while at the same time prohibiting the use of such testimony in a subsequent prosecution of the witness. Fox, 491 N.W.2d at 533. In Fox, the Iowa court discussed a request that had been made for use immunity and said the majority of courts refuse to recognize use immunity as constitutionally required; the defense’s use of use immunity significantly impairs the State’s ability to prosecute immunized witnesses and there is a potential for abuse. See id. at 533. The court went on, however, to find it did not need to decide the issue because, if use immunity is available at all, it should be considered only in circumstances in which the prosecution has improperly prevented a defense witness from giving essential exculpatory evidence, id. at 533-34, and the court did not find such a situation to exist in Fox. Peterson advances this is the case where use immunity should be available because exculpatory testimony otherwise will be excluded because the State’s threat of prosecution for perjury will force McCarthy to again assert the Fifth Amendment privilege. In Government of Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir.1980), the court said judicial immunity is triggered by the fact the defendant is prevented from presenting exculpatory evidence which is crucial to his or her case rather than by prosecutorial misconduct or intentional distortion of the trial process. See id. at 969. The justification for employing such a power arises from the due process right to have clearly exculpatory evidence presented to the jury, at least when there is no strong countervailing systemic interest which justifies its exclusion. Id. at 970. The basic constitutional doctrine that the defendant has the right to an effective defense is inherent in the guarantee of a fair trial and due process of law which is a well established and long recognized right. The case at bar is one in which clearly exculpatory testimony will be excluded because of a witness’s assertion of the Fifth Amendment privilege. Therefore, *826a compelling justification exists for grant of immunity.
Virgin Islands set forth a five-step test that must be met before the grant of immunity may be secured. First, immunity must be sought in the district court; second, the defense witness must be available to testify; third, the proffered testimony must be exculpatory; fourth, the testimony must be essential; and fifth, there must not be strong governmental interests which countervail against a grant of immunity. See id. at 972. This case meets that five-step test. The evidence was identified at trial, and a proper application for its admission was made. The witness was named, and the trial court was fully aware of what testimony he would give. He was in the court room on the stand when he pled the Fifth Amendment right. The evidence was exculpatory to Peterson’s case. The State showed no countervailing interests.
An additional question arises and that is, whether the court has the authority to grant immunity without a request from the State. There are strong arguments made for not allowing a defendant to request immunity for his or her witness. See generally In re Kilgo, 484 F.2d 1215, 1222 (4th Cir.1973). There are circumstances under which due process may demand the State request use immunity for a defendant’s witness. See Morrison, 535 F.2d at 229. I would reverse and remand for a new trial. I would hold, in the event Peterson calls McCarthy as a witness and McCarthy invokes his Fifth Amendment right not to testify, a judgment of acquittal' shall be entered unless the State requests use immunity for his testimony. See id.
Also of significant importance and somehow missed by the majority here is the effect decisions such as this have on fact finders, jurors, or judges who we ask in criminal trials to decide guilt or innocence with the resulting and substantial impact, as here, on the difference between an individual’s (Peterson’s) freedom and incarceration. The judge, before rendering a verdict, should have heard the testimony of the driver of the car, McCarthy, who, despite a written statement given earlier, would have testified Peterson did not know the drugs were in the car. The State could have impeached the testimony by the prior statement but the fact finder charged with determining the truth, would have had the opportunity to decide which time the witness was truthful on the issue; an issue crucial to Peterson’s guilt or innocence. I am disappointed the State and the majority here feel the fact finder should not have that evidence. The prosecutor’s position is to convict the guilty, not the innocent. Sometimes the desire to win gets in the way. A trial is a search for the truth. Maneuvers that stand in the way of fact finders having all the evidence should not be condoned. When we allow intimidation to keep relevant evidence from a fact finder, we tarnish our system for reaching justice and finding the truth.
I realize the majority has hinged its decision on the finding McCarthy was not intimidated by the county attorney. Such a finding is totally contrary to what happened here. After talking to McCarthy, the county attorney suggested he would consider perjury if McCarthy did not testify. Not only did McCarthy have to worry about the filing of a perjury charge, which would be of concern to an ordinary citizen, but he faced the probability that the fact a perjury charge might be filed or would be filed would have a direct effect on the term of his current incarceration.
In my mind, there is no question but McCarthy was intimidated not to testify.
I would reverse and remand for a new trial.
HAYDEN, J., joins this dissent.
. Iowa Code section 204.401(l)(d) is now codified at Iowa Code section 124.401(l)(d) (1993).
. Iowa Code section 421A.12 is now codified at Iowa Code section 453B.12 (1993).
. The federal courts have not required a showing of prejudice. It is suggested that the United States Supreme Court did not require a showing of prejudice when they reversed a Texas Court of Appeals decision in Webb v. Texas, 409 U.S. 95, 99, 93 S.Ct. 351, 354, 34 L.Ed.2d 330, 334 (1972). In Webb, the Court reversed where a defense witness was prevented from testifying freely without addressing the dissenting justices claim there was overwhelming evidence. Relying on Webb, the 3rd Circuit in United States v. Morrison, 535 F.2d 223, 228 (3rd Cir.1976), said "[Wjhere the Government has prevented the defendant's witness from testifying freely before the jury, it cannot be held that the jury would have believed the testimony or that the error was harmless.”