In People v. Hunter (1989) 49 Cal.3d 957 [264 Cal.Rptr. 367, 782 P.2d 608], the California Supreme Court applied the criteria for judicially conferred immunity set forth in Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, to the facts before them, but found that the defense had failed to show that the proffered testimony was “ ‘clearly exculpatory and essential’ ” to the defense. (People v. Hunter, supra, 49 Cal.3d at p. 974.) In the instant case the trial court applied those same criteria to defendant’s offer of proof and found that the defense had failed to show the proffered testimony was not cumulative. It is that ruling *1373which should be the subject of appellate review. Instead, my majority colleagues launch a frontal attack on Hunter, dismissing the Supreme Court’s three-page analysis on judicial immunity as dicta, and then deciding the issue on die basis of cases which not only predated Hunter but were treated by the Supreme Court as nondispositive. From that analysis I dissent.
Summary dismissal of Hunter might be appropriate if that decision had been written differently, for example, if it had been simply a rejection of the contention with citation to the three existing Court of Appeal cases which find no power in the trial courts to grant immunity: People v. Sutter (1982) 134 Cal.App.3d 806, 812-814 [184 Cal.Rptr. 829], People v. DeFreitas (1983) 140 Cal.App.3d 835, 839-841 [189 Cal.Rptr. 814], and People v. Estrada (1986) 176 Cal.App.3d 410, 418 [221 Cal.Rptr. 922],1
But the Hunter analysis is much more complex. After noting those three cases, Justice Kaufman, speaking for a unanimous court, focused his attention on Government of Virgin Islands v. Smith, the then sole federal circuit court decision which had recognized the due process implications for the defendant. (People v. Hunter, supra, 49 Cal.3d at pp. 973-97S.)2 After a full discussion of Smith and its holding, he concluded that the defendant’s offer *1374of proof did not measure up to the Smith standards for judicially conferred immunity. But analysis did not stop there.
Instead Justice Kaufman proceeded to note the cases which had put limits on the power of the prosecutor to grant immunity, and added, “We agree the prosecutor’s duty is to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game.” (People v. Hunter, supra, 49 Cal.3d at pp. 974-975.) He then specifically referred to a case in which a conviction had been reversed where the government selectively granted immunity to two prosecution witnesses, but refused to grant it to two other critical defense witnesses (United States v. De Palma (S.D.N.Y. 1979) 476 F.Supp. 775, 780-782) and to the holding in the Third Circuit that the prosecution cannot selectively grant or withhold immunity “with the deliberate intention of distorting the judicial fact finding process” (United States v. Herman (3d Cir. 1978) 589 F.2d 1191, 1204). (People v. Hunter, supra, 49 Cal.3d at pp. 974-975.) Not content just to note these doctrines, Justice Kaufman returned to the facts of the case before him and concluded: “there is no evidence here that the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence.” (People v. Hunter, supra, at p. 975.)
Thus my majority colleagues are correct when they say the Supreme Court did not decide whether “in appropriate circumstances an essential witness for a criminal defendant should be granted judicial use immunity.” (People v. Hunter, supra, 49 Cal.3d at pp. 974, 975.) But what is equally true is that the Supreme Court did not instruct the lower courts of this state to hide their heads in the sand and blithely follow Sutter, DeFreitas and Estrada. When the California Supreme Court devotes such detailed attention to an issue it could have easily rejected outright, those pronouncements deserve respectful attention. Indeed, I read the unmistakable message of Hunter to be that the courts of this state should apply the Smith guidelines where they fit.
To its credit, the trial court understood that message for it applied the Hunter/Smith standards, although it did so incorrectly.
The five Hunter/Smith standards are these: immunity must be properly sought in the trial court; the defense witness must be available to testify; the proffered testimony must be clearly exculpatory; the testimony must be essential, meaning it cannot be cumulative or relating only to the credibility *1375of the prosecution’s witnesses; and there must be no strong governmental interest which countervails against a grant of immunity. (Government of Virgin Islands v. Smith, supra, 615 F.2d at pp. 972, 974.)
After an in camera hearing3 in which the trial court heard the proffered testimony of eyewitness Steven Huynh, the court denied immunity only because it determined that Huynh’s testimony was cumulative.4
The trial court was simply wrong. Huynh’s proffered testimony was anything but cumulative. There were four people in the room at the time of the shooting: defendant, the victim, Bush and Huynh. Bush and Ryan put the blame on defendant; defendant said it was an accident. Huynh alone agreed with defendant. Unless one defines cumulative as including the sole testimony corroborating that of the defendant, Huynh’s testimony as a matter of law was not.
Returning to the Hunter/Smith elements, nearly all the pins fall easily. Huynh was available to testify. Huynh’s testimony was essential to the defense case: it would have corroborated defendant’s testimony and directly contradicted the testimony of the government’s witnesses. Huynh’s testimony was exculpatory. Huynh’s testimony was neither ambiguous nor did it relate only to the credibility of the government’s witnesses.
However the trial court did not consider the final Smith criterion: whether there might be a governmental interest countervailing against a grant of immunity to Huynh. Whether this factor exists cannot be decided in a factual vacuum. While we know that the prosecutor was unwilling to offer Huynh transactional immunity,5 we do not know whether there might be a good and sufficient reason not to offer him use immunity. Therefore, I would remand to the trial court for purposes of a hearing in which the People would be required to demonstrate a governmental interest countervailing against a *1376grant of immunity to Huynh, and for further proceedings in the event that the People are unable to sustain that burden of proof.
Appellant’s petition for review by the Supreme Court was denied September 23, 1993. Mosk, J., Kennard, J., and Arabian, J., were of the opinion that the petition should granted.
Unlike the California Courts of Appeal, the commentators have uniformly advocated the doctrine of judicially conferred immunity, although they have differed on the constitutional compulsion for the doctrine. (See, e.g., Comment, Defense Witness Immunity and the Right to a Fair Trial (1980) 129 U.Pa.L.Rev. 377 [due process]; Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses (1978) 91 Harv.L.Rev. 1266 [Sixth Amendment]; Note, “The Public Has a Claim to Every Man’s EvidenceThe Defendant’s Constitutional Right to Witness Immunity (1978) 30 Stan.L.Rev. 1211 [due process]; Note, Separation of Powers and Defense Witness Immunity (1977) 66 Geo.L.J. 51; Westen, The Compulsory Process Clause (1974) 73 Mich.L.Rev. 71 [Sixth Amendment]; Note, A Re-Examination of Defense Witness Immunity: A New Use for Kastigar (1972) 10 Harv.J. on Legis. 74; Note, Right of Criminal Defendant to the Compelled Testimony of Witnesses (1967) 67 Colum.L.Rev. 953.)
Worth noting is that the court in Hunter did not deem it necessary to cite by name one of the federal cases reaching the opposite conclusion, preferring instead to point the reader to People v. DeFreitas, supra, 140 Cal.App.3d 835, and to an article in the American Law Review (see Annot. (1981) 4 A.L.R.4th 617). (People v. Hunter, supra, 49 Cal.3d at p. 972.) Nor did the high court mention the leading Second Circuit case of United States v. Turkish (2d Cir. 1980) 623 F.2d 769, which had held that the Fifth Amendment does not require that the defense witness immunity “be ordered whenever it seems fair to grant it.” (Id. at p. 777.) It is curious that my majority colleagues now elect to be “persuaded” by the Turkish case when the Supreme Court thought it not worth mentioning. (Maj. opn., ante, p. 1370.)
What is even more curious about their reliance on Turkish is that, although the Second Circuit has left the immunity decision with the executive branch, it has not left that power unchecked. To the contrary, the Second Circuit has repeatedly recognized the power of the judiciary to force the prosecution to grant immunity to a defense witness when the defense establishes three things: (a) prosecutorial overreaching has forced the witness to invoke the privilege against self-incrimination; (b) the witness’s testimony is material, exculpatory and not cumulative; and (c) the defendant has no other way to obtain the evidence. {United States *1374v. Burns (2d Cir. 1982) 684 F.2d 1066,1077; accord, U.S. v. Bahadur (2d Cir. 1992) 954 F.2d 821, 826; U.S. v. Pinto (2d Cir. 1988) 850 F.2d 927, 935; United States v. Calvente (2d Cir. 1983) 722 F.2d 1019, 1025.) The net result is the same as under the Smith approach; it is the solution which is different.
Without explanation, the majority also takes issue with the in camera procedure utilized by the trial court here, and states a preference for an offer of proof as was utilized in Hunter. (Maj. opn., ante, p. 1366, fn. 3.) I can find no fault with either approach.
The trial court said “his offered testimony would be cumulative, that it does not relate only to the credibility of governmental witnesses, and while it is exculpatory, it is not openly, clearly contrary to the evidence that’s already before the court.”
A final observation. The prosecutor conferred transactional immunity on the victim Ryan, and allowed prosecution witness Bush to enter a plea to a reduced charge in exchange for his testimony. Although no sentence had been promised, Bush hoped to be given three years probation. Despite the fact that Huynh on the other hand was neither charged with a crime in conjunction with this event nor offered transactional immunity, no question was raised as to the prosecutor’s motives and no contention of prosecutorial discrimination has been asserted.