(dissenting):
122 I respectfully dissent. I agree with the lead opinion's statement of the law regarding the invocation of the Fifth Amendment privilege. I do not, however, agree with the lead opinion's characterization of the trial court's treatment of Son's and Chesnoff's possible testimony-ie., that "Tthe trial court wanted and needed to hear the specific eross-examination questions and to consider all the facts before it could rule," supra ¶ 12.
23 The trial court told Son that should he choose to testify and then invoke his Fifth Amendment privilege in response to any question, the entirety of his testimony-without regard to the specific questions asked-would be stricken:
[DEFENDANTS' ATTORNEY]; Your Honor, I would like to address the Court on a problem with an issue that has occurred to me during the break. There's been a proffer of testimony of [Son], and the Court's asking me if I would like to cross-examine him. I would, but if I do so, his credibility has already come into question in this court, and I fully intend to question him about his credibility and his involvement with drugs.
Now, I took his deposition earlier, and he claimed the Fifth Amendment in that *301regard. I can't have a situation where there's a proffer of testimony by [Son] that I'm not able to get into any questions about his credibility because he refuses to answer. That makes it impossible-
THE COURT: Well, I will-I'l assume that the proffer is a waiver. If it isn't, then I'll disregard the proffer.
[DEFENDANTS ATTORNEY]: Can we get an answer on that?
[PLAINTIFFS ATTORNEY]; Yes, Your Honor. I think those are two entirely separate issues. The proffer has to do with what his understanding was at the time that [the Properties]-
THE COURT: He has to be willing to get on the stand and testify and be subject to eross-examination. I'm not going to limit cross-examination to just the proffer, because I think eredibility is an issue.
[PLAINTIFF'S ATTORNEY]: Your Honor, I believe that his-he's not required to choose between making the proffer of testimony with respect to the conveyance of [the Properties]-
THE COURT: I'm going to disregard the proffer. I'm going to disregard his proffer if he won't testify and subject himself to cross-examination. Now-so, I mean, you can-you may not think that that's a choice that you want to have him make, but that's what I'm saying. And if you want some time to think about it, fine. If you don't fine.
[PLAINTIFFS ATTORNEY]: No, Your Honor. I'd just like the benefit of the record to put my objection on the record, if I may, please.
THE COURT: Okay. Go ahead.
[PLAINTIFF'S ATTORNEY]: My objection would be as follows:
The proffer of testimony has to do with the conveyance of [the Properties] and the intent behind the conveyance of [the Properties] in 1988 and 1994.
[Defense counsel] could certainly cross-examine with respect to credibility on the issue of whether or not [Son] is currently facing felony charges. [Son] is not convicted of any felony charges, and under Rule 608 and 609, that wouldn't be admissible.
There's no other relevant inquiry into credibility other than the fact that he's charged. In order to-we shouldn't have to choose between him putting on testimony that's completely unrelated to the federal charges and a complete waiver of his Fifth Amendment privilege against self-incrimination with respect to the substantive criminal charges.
And that's just the only record that I would make on that regard, Your Honor.
THE COURT: All right. Well-
[PLAINTIFF'S ATTORNEY]: Let me consult with [Son] for just a moment, if I could, if that's the option we're going to give him.
[DEFENDANTS ATTORNEY]: In this regard, I don't think [Plaintiff's attorney] is [Son's] lawyer.
[PLAINTIFF'S ATTORNEY]: [I'm] not, Your Honor. But-
THE COURT: Well, you might be careful, then, about what you talk to him about.
[DEFENDANTS ATTORNEY] I think he can address the Court. It would be by way of testimony. And if he does, he's waiving his Fifth Amendment right.
[PLAINTIFF'S ATTORNEY]: Actual ly, I think he's asking for a clarification. As [defense counsel] pointed out, you're right, I don't represent [Son] anymore. He's asking for clarification of the order.
THE COURT: What do you want to know, [Son]?
[SON]: I just wanted to know, Your Honor, if I do get on that stand and testify and I feel that there's something that might infringe upon what I believe is my rights, my Fifth Amendment rights, and I refuse to answer that, are you going to hold me in contempt of court or-or is that an option that I still have? And it-
THE COURT: Well, I'm not going to let you or [Plaintiff's attorney] pick and choose the subjects that you're going to testify about. If you testify at all and- and then-on some issues and then try to claim the Fifth Amendment on other issues, I'm going to disregard all of your testimony. So that's-that's my ruling. So
*302[SON]: Then I would have to not.
THE COURT: All right. Then I'm going to disregard the proffer with respect to [Son].
(ellipsis in original) (emphasis added). This is the entirety of the discussion between the time when the issue was raised and when Son decided not to take the witness stand and effectively waive his Fifth Amendment rights.
{24 Moreover, the trial court's comment that "we won't know the answer to that until we're right in the middle of it" had nothing to do with the determination of whether Son could testify but was made in response to Plaintiff's attorney stating that she believed that Chesnoff could quite easily talk about the statements Son made to him without talking about Son's federal drug charges.1 Further, just two statements later, the trial court again referenced the fact that it wanted all or nothing from the witnesses' testimony, stating, "I've got to hear the whole-the whole ball of wax or none of it." And certainly the parties interpreted the trial court's comments as I do, for thereafter Plaintiff's attorney argued that she was "stuck with an all-or-nothing proposition," stating, "I don't want to lose by virtue of the fact that I've been put in a Catch 22, a lose/lose proposition where either [Chesnoff] gets to testify and rebut my evidence [or Plaintiff] and [Son] have to swallow a bitter pill and, suddenly, there's going to be testimony that will be used against [Son] in a criminal proceeding." And Defendants' attorney effectively recognized the all-or-nothing choice that Son had been forced to make when he argued against postponement by stating, "[Son] has said, unequivocally, 'I will not get on the witness stand. I will not waive my Fifth Amendment right, case over."
¶25 Thus, considering the trial court's all- or-nothing approach, making its determination regarding the exercise of Son's Fifth Amendment rights without allowing any specific questions to be asked, I think the trial court's ruling was in error. Indeed, this approach left us in the very position of which the lead opinion complains, i.e., that without the witnesses taking the stand we have no specific questions to evaluate, see supra "I 14. I would therefore reverse on this issue and remand for a new trial.
. I think it is somewhat misleading to state that Chesnoff was willing to take the stand but ultimately "acquiesced" to Plaintiff's request that he not testify, see supra ¶ 5 and note 2. It is clear that it was in Chesnoff's best interest to avoid testifying that he had previously stated on the record during Son's federal criminal proceedings that the Properties belonged to Plaintiff And Chesnolff's counsel vigorously worked to create a situation whereby such testimony would come in only at great cost to Son.