State v. Munoz , 103 N.M. 40 ( 1985 )

STOWERS, Justice,

specially concurring.

I concur with the majority opinion that the government failed to meet its burden of proving that the district attorney, who was present at the time defendant gave his immunized testimony and who admittedly read a transcript of the immunized testimony prior to defendant’s trial, did not use the immunized testimony in some significant way short of introducing tainted evidence.

I am concerned, however, with the treatment relating to witness testimony. The test for the admission of witnesses as it relates to immunized testimony is different and should be clearly spelled out. According to United States v. McDonnel, 550 F.2d 1010 (5th Cir.1977) and United States v. Rogers, 722 F.2d 557 (9th Cir.1983), a witness who was present during a defendant’s immunized testimony may testify, so long as his testimony is based on other sources besides defendant’s immunized testimony. Therefore, if the government can prove by a preponderance of the evidence that the testimony of the three police officers will be based on information independent of defendant’s immunized testimony, then their testimony would be admissible in a retrial of defendant.