concurring, but dissenting from the remand:
I join Judge Gallagher’s opinion in its entirety except for the determination that the case be “Remanded for further proceeding consistent with this opinion.”
At the trial in this case, the judge applied the law which we decide today controls the *350issues presented in this ease. The trial judge upheld the witness’s self-incrimination claim, ruling that the “prospect of prosecution ... is real albeit not substantial.” Today we hold that “if the trial judge concludes the proposed testimony would be incriminating and thereby poses the risk of possible future prosecution of the witness, this ends that inquiry and a claim of privilege should be sustained.” Ante at 338. I can discern no difference between the rule laid down by us today and the ruling made by the trial judge. In short, the trial judge properly applied the law.
It is a complete mystery to me what action the majority expects the trial judge to take after remand. As I have said, the trial judge correctly applied the law and it seems to me that should end the matter. Does the majority expect the trial judge, on remand, to direct the parties and the witness to go back into time, placing themselves in the situation they found themselves at the trial, and to then undertake the procedure outlined in Parts VI and VII of the en banc opinion? I doubt that such a reconstruction of the past can practicably be done.1
If, however, the trial court analyzes the issues, as of the time of remand, then the result is preordained — because the alleged drug use occurred ten years ago, the statute of limitation has long since run; therefore, the witness could not be prosecuted, and no claim of privilege against self-incrimination would lie. See Jaggers v. United States, 482 A.2d 786, 793 (D.C.1984) (“privilege [does not] exist where the statute of limitation has run”); D.C.Code § 23-113 (1996 Repl.) (statute of limitation for all offenses other than murder and other felonies is three years).
At the very least, this court should provide some guidance to the trial court concerning what is expected upon remand.
. On the other hand, because the proffered testimony, ante at 333, is more in the nature of impeachment of the complainant’s testimony than substantive evidence of Carter’s innocence, I question whether the defense will be able to overcome the threshold requirement that it establish that the prospective witness possessed “material, exculpatory, non-cumulative evidence, unobtainable from any other source.” Ante at 344 n. 17 & 28. That burden is a heavy one, requiring, in the words of the majority, that the defense show that Carter’s brother is "the only witness who, if believed, would clearly establish a reasonable doubt on the defendant’s guilt.” Ante at 343 (emphasis added).