ON REHEARING EN BANC
GALLAGHER, Senior Judge:
George E. Carter, appellant, was convicted on two counts of armed robbery, D.C.Code §§ 22-2901, -3202 (1989), and one count of carrying a pistol without a license, D.C.Code § 22-3204 (1989). His principal contention is that the trial judge committed reversible error by sustaining the invocation by his younger brother, Craig Carter, of the constitutional privilege against self-incrimination. On appeal, a division of this court ordered the case remanded for further proceedings in relation to the claim of the constitutional privilege in order to determine “whether there was a reasonable possibility at the time of trial that Craig Carter would be prosecuted,” Carter v. United States, 643 A.2d 348, 367-68 (D.C.1994), and if not, then the conviction would be set aside. However, we granted the government’s petition for rehearing en bane, 651 A.2d 1393, to consider the constitutional issue and vacated the division opinion and judgment. We now remand for further proceedings, and in doing so, we reject our prior holding in Joggers v. United States, 482 A.2d 786 (D.C.1984) (per curiam), and its progeny on the constitutional issue there involved.
I.
The two complainants testified that George Carter and another man robbed them at gunpoint. Both complainants were previously acquainted with defendant George Carter. Carter called his brother, Craig Carter, as a defense witness at his trial. He proffered that, were it not for a self-incrimination claim he would make, his brother would testify, among other things, that complainant Ed-monds had acknowledged to him that he (Edmonds) did not know who had robbed him. His brother Craig was also expected to testify that complainant Edmonds had sold him drugs and had been using drugs at the time of the robbery. The prosecutor advised the court that if the brother, Craig Carter, testified, he would seek to cross-examine him by inquiring about Craig’s own drug use, arguing that such drug use was relevant to his ability to perceive and relate his alleged encounter with Edmonds. The trial judge concluded that such cross-examination would be permissible to some extent. The court therefore appointed counsel to advise Craig Carter, who was incarcerated at the time, with respect to his self-incrimination rights under the Fifth Amendment.
Craig Carter was then questioned outside the presence of the jury and, upon the advice of his attorney, stated that he would invoke his privilege against self-incrimination with respect to any questions that might be posed to him with regard to his use of unlawful drugs. His counsel argued that his client’s answers to such questions could subject him to prosecution for unlawful possession of a controlled substance.
Appellant proffered at trial that his brother, Craig Carter, had been a resident of a halfway house both in May 1986 (when complainant Edmonds allegedly sold him heroin) and in July 1986 (when Edmonds allegedly admitted not knowing who robbed him), that test samples of Craig’s urine had been “dirty” in May, June and July 1986, that Craig’s work release privileges had been revoked and “that is why he is where he is.” Appellant argued, however, that it would be “utterly unreasonable” to assume that Craig Carter would be prosecuted on the basis of historical evidence for simple possession of PCP a year and a half before the trial, or that “the parole board will punish him twice.”
In response to the question, the prosecutor asserted that “we will not immunize [Craig Carter] in advance ... without [eliciting] from the witness all the facts underlying the witness’ alleged criminal activity.” In any event, the government later declined to grant immunity to the witness, as requested.
After extensive inquiry concerning the government’s position on the Fifth and Sixth Amendment issues, the trial judge observed that “the prospect of prosecution in this case [334]*334is real albeit not substantial_” In upholding the claim, the court stated that the “legal possibility” of prosecution was the decisive factor in upholding the constitutional claim of privilege against self-incrimination.
Appellant was convicted of all charges. In its discussion of the Fifth Amendment issue on appeal, the divided court’s majority opinion summarized the required inquiry in our then controlling opinion in Jaggers, supra, as follows:
[T]he court in Jackson specifically noted that, under Jaggers, the judge must determine whether “(1) the witness’ testimony would be incriminating,” and (2) “if so, whether the risk of prosecution is substantial and real and not merely fanciful.” Id. at 196 n. 8 (emphasis added; internal quotation marks omitted). The court added that the trial judge had sufficiently “considered the incriminatory nature of the proposed testimony and also the likelihood that criminal prosecution would result.” Id.
(Emphasis added).
‡ ‡ ‡ ‡ ‡ ‡
In Jaggers, we stated that “[o]ne of the questions we must address to resolve the issues presented in this case is whether an absolute legal barrier to prosecution must exist before a witness can be compelled to testify in face of his claim of privilege. We think not.” 482 A.2d at 793. In Wilson [v. United States, 558 A.2d 1135 (D.C.1989)], we reiterated that
[w]here a witness might legally be prosecuted, but the threat of prosecution is not “real or appreciable,” this court has held that the privilege may not properly be invoked.
[id] at 1141 (citing In re Neal, 475 A.2d 390, 392 (D.C.1984) (per curiam)). Similarly, in Irby [v. United States, 585 A.2d 759 (D.C.1991)], we held that the trial judge must seek a commitment from the prosecutor that the potential defense witness will not be prosecuted, but that even if no commitment is forthcoming, “the trial judge must make an independent assessment, based on all of the circumstances, of the likelihood of prosecution.” Id., 585 A.2d at 763-64. In Irby, the trial judge made no inquiry regarding the second step, and we therefore remanded for further proceedings. Id. at 764.
Neal, Jaggers, Jackson, Wilson, Irby, and (James) Harris [v. United States, 614 A.2d 1277 (D.C.1992)] thus all address not only the authority of the government to prosecute the witness but also the existence vel non of a reasonable possibility that this will come to pass. Since the trial judge ultimately held that the first step alone was sufficient, we must return the ease to him to determine, many years after the fact, whether there was a reasonable possibility at the time of trial that Craig Carter would be prosecuted, or to put it another way, whether the possibility of prosecution was “real” or merely “fanciful.” This determination must be made on the basis of all of the circumstances, including the fact that possession of PCP is itself a crime (and not simply a fact in a chain that might lead to the discovery of a crime), that Craig’s use of PCP had been known to correctional authorities for a year and a half, that his halfway house privileges had been revoked, and that, according to Mr. Strasser, misdemeanor prosecutions for unlawful drug possession, based on historical evidence, are most unusual. We are satisfied that if the judge concludes that Craig Carter’s claim of privilege was improperly sustained, the error was prejudicial, rather than harmless beyond a reasonable doubt. In that event, the judge must set aside George Carter’s convictions.
Carter, supra, 643 A.2d at 357-58 (emphasis in original; footnotes omitted).
We granted the government’s petition for rehearing en banc and after en banc consideration, we now overrule our prior decision in Jaggers, supra, and its progeny, insofar as these cases require the trial judge, in evaluating a defense witness’ invocation of the privilege against self-incrimination, to predict or assess the practical likelihood that the witness will be prosecuted.
II.
There has long been a tension between the accused’s Sixth Amendment right of compul[335]*335sory process to obtain witnesses in aid of a defense, and a witness’ Fifth Amendment right against self-incrimination. We went en banc here to decide the important constitutional issue of what' should happen when these Sixth Amendment rights of a defendant collide with the Fifth Amendment right of a trial witness against self-incrimination, in the manner involved in this case. We further consider the important interplay of the defendant’s Fifth Amendment due process rights to a fair, truth-seeking trial in relation to the claim on self-incrimination.
This court has addressed a conflict between the Fifth and Sixth Amendment constitutional rights on several occasions. In In re Neal, supra, the witness was held in criminal contempt for failing to testify before a grand jury on the identity of the driver of a car in a robbery in which he was involved. The witness had been sentenced pursuant to a plea bargain and asserted that he could not later be ordered to testify because he remained liable to prosecution by the District of Columbia despite having reached a plea bargain with the United States Attorney. We deemed
the threat of prosecution by the Corporation Counsel as not “real and appreciable.” ... Moreover, we deem it only an “imaginary possibility” that the Corporation Counsel might proceed against appellant for violations of Police Regulations upon the basis of his answering grand jury questions about the driver of the car on the night of the robbery after appellant had been convicted and sentenced on the armed robbery charge brought by the United States Attorney.
475 A.2d at 392 (quoting Alston v. United States, 383 A.2d 307, 312 (D.C.1978)); see also Harris, supra, 614 A.2d at 1282 (concluding that “there was no real danger of legal detriment arising out of the second disclosure”). In Joggers, supra, 482 A.2d at 793, this court concluded no “absolute legal barrier to prosecution must exist before a witness can be compelled to testify in face of his claim of privilege.” Rather, we held the trial judge must evaluate the actual risk of prosecution, not just whether the testimony would be incriminatory. Id.
Since Joggers, this court has repeatedly said that, when considering a conflict between the Fifth Amendment right against self-incrimination and the Sixth Amendment right to present a potential exculpatory witness, the trial court should analyze the likelihood of criminal prosecution. In Jackson v. United States, 490 A.2d 192, 196 n. 8 (D.C.1985), the court stated, relying on Joggers, that a judge must determine whether “(1) the witness’ testimony would be incriminatory, and (2) if so, whether the risk of prosecution is substantial and real and not merely fanciful” (internal quotation marks omitted). The court added that the trial judge had sufficiently “considered the incriminatory nature of the proposed testimony and also the likelihood that criminal prosecution would result.” Id.
In Irby, supra, the court again stated that the “Fifth Amendment privilege only extends to real dangers and not to remote possibilities where the threat of prosecution is not real or appreciable.” 585 A.2d at 763 (internal quotation marks omitted). We concluded that even when the prosecutor cannot “make a commitment” that a potential defense witness will not be prosecuted, “the trial judge must make an independent assessment, based on all of the circumstances, of the likelihood of prosecution.” Id. at 763-64. It is the task of the trial judge to assess the “probability of prosecution.” Id. at 764. In Wilson, supra, we reiterated that
[wjhere a witness might legally be prosecuted, but the threat of prosecution is not “real or appreciable,” this court has held that the privilege may not properly be invoked.
558 A.2d at 1141 (citing In re Neal, supra, 475 A.2d at 392).
Joggers, Neal, Jackson, Wilson, Irby, and Harris stand for the proposition that when this issue arises the trial court must evaluate whether, in practical terms, the government is likely to prosecute the witness claiming the privilege against self-incrimination. However, since we are sitting en banc, we are not bound by this court’s earlier decisions on the issue involved.
[336]*336III.
We now address first the conflict between the Fifth and Sixth Amendments when a defendant seeks to compel potentially exculpatory testimony from a defense witness who invokes a Fifth Amendment privilege against self-incrimination. In doing so, we will canvass numerous opinions across the country— federal and state — where this constitutional issue has been discussed. Since we are interpreting federal constitutional provisions we will naturally focus considerable attention on opinions of the federal appellate courts interpreting these same Bill of Rights provisions.
In Harris, supra, 614 A.2d at 1281-82, we summarized the basic legal principles applicable to the issue here presented as follows:
As the trial judge explicitly recognized, a criminal defendant’s right to present witnesses in his own defense is a fundamental one. Wilson v. United States, 558 A.2d 1135, 1140 (D.C.1989). Nevertheless, “in the crunch, when all else fails, the Fifth Amendment privilege of the witness prevails over the defendant’s right to compel him to testify.” Id. “Because both rights are so precious ... and because a forced election is so painful, it is the responsibility of the trial judge to take all reasonable steps to avoid a direct collision.” Id.
So, in considering a claim of privilege against self-incrimination it is not a crucial consideration whether the Fifth Amendment claim by a witness is being made in the face of a defendant’s Sixth Amendment right to compel testimony in one’s defense. The Fifth Amendment privilege nevertheless prevails, though a collision between the two amendments should be avoided if feasible.
We find ourselves in agreement with the overwhelming majority of cases across the land, especially in the federal circuits, which have determined that the trial judge should not speculate about or predict the likelihood of prosecution in relation to an assertion of the constitutional privilege against self-incrimination. See, e.g., Resnover v. Pearson, 965 F.2d 1453, 1462 (7th Cir.1992) (“[w]e cannot agree that a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution”), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993); United States v. Sharp, 920 F.2d 1167, 1171 (4th Cir.1990) (stating that “once incriminating potential is found to exist, courts should not engage in raw speculation as to whether the' government will actually prosecute ... and should only pursue that inquiry when there are real questions concerning the government’s ability to do so because of legal constraints such as statutes of limitation, double jeopardy, or immunity”); United States v. Cuthel, 903 F.2d 1381, 1384 (11th Cir.1990) (witnesses can properly invoke privilege “even if the risk of prosecution is remote” and
[wjhile there is arguably a conflict between a witness’s fifth amendment privilege and a defendant’s sixth amendment right to compulsory process, such conflict long ago was resolved in favor of the witness’s right to silence. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931)).
United States v. Edgerton, 734 F.2d 913, 921 (2d Cir.1984) (stating that the judge should not predict the likelihood of prosecution); United States v. LaCoste, 721 F.2d 984, 987 (5th Cir.1983) (privilege upheld even if likelihood of prosecution “remote”), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Jones, 703 F.2d 473, 477-78 (10th Cir.1983) (holding that a court “should not attempt to speculate whether the witness will in fact be prosecuted” despite an affidavit stating that no criminal prosecution is underway); In re Corrugated Container Antitrust Litig., 213 U.S.App. D.C. 319, 329, 662 F.2d 875, 885 (1981) (privilege upheld even if likelihood of prosecution remote); In re Corrugated Container Antitrust Litig., 661 F.2d 1145, 1151 (7th Cir.1981) (stating that “validity of the privilege cannot be grounded on a district court’s prediction of the likelihood of prosecution”), aff'd, 459 U.S. 248,103 S.Ct. 608, 74 L.Ed.2d 430 (1983); In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir.1979) (stating that “we cannot agree that a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of pros[337]*337ecution”); In re Keijam T., 226 Conn. 497, 628 A.2d 562, 566 (1993) (stating that the test is possibility of prosecution rather than likelihood of prosecution); Commonwealth v. Long, 533 Pa. 388, 625 A.2d 630, 634 (1993) (“[e]ven though the danger of prosecution for fornication was remote, such a possibility presented a reasonable cause for the defendant to be apprehensive”). “The rarity of prosecutions under a particular statute, or a prosecuting attorney’s indication in a particular case that he will not prosecute, are not sufficient to defeat a claim of privilege” against self-incrimination. Choi v. State, 316 Md. 529, 560 A.2d 1108, 1112 (1989).
In United States v. Miranti, 253 F.2d 135, 139 (2d Cir.1958), the court earlier answered the same question posed to this court in this case: “whether or not a witness can invoke his privilege against self-incrimination where practically there is only a slight possibility of prosecution.” The Miranti court answered the question:
We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception to the general rule which would nullify the privilege whenever it appears that the government would not undertake to prosecute. Such a rule would require the trial court, in each case, to assess the practical possibility that prosecution would result from incriminatory answers. Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor.
Id. (footnote omitted); see also In re Corrugated Container Antitrust Litig., supra, 661 F.2d at 1151 (concluding that “[t]he validity of the privilege cannot be grounded on a district court’s prediction of the likelihood of prosecution because the past and present behavior of prosecutorial authority is not a sufficiently accurate indication of the risk of criminal prosecution”).
The government’s present intent in relation to prosecution of the crime does not affect the Fifth Amendment claim. United States v. Chase, 281 F.2d 225, 229-30 (7th Cir.1960). In fact, reliance upon statements by the government that they will not prosecute or are not intending to prosecute will not extinguish the witness’ privilege against self-incrimination. See United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Estate of Fisher v. C.I.R., 905 F.2d 645, 649 (2d Cir.1990); Sharp, supra, 920 F.2d at 1171; Edgerton, supra, 734 F.2d at 921 n. 10; United States v. Johnson, 488 F.2d 1206, 1209 n. 2 (1st Cir.1973); Choi supra, 560 A.2d at 1112. Nor will the practical assessment of the reality of prosecution defeat the privilege against self-incrimination. See In re Master Key Litig., 507 F.2d 292, 293 (9th Cir.1974); Commonwealth v. Francis, 375 Mass. 211, 375 N.E.2d 1221, 1225 , cert. denied, 439 U.S. 872, 99 S.Ct. 205, 58 L.Ed.2d 185 (1978); Commonwealth v. Colantonio, 31 Mass.App.Ct. 299, 577 N.E.2d 314, 318 (1991), review denied, 414 Mass. 1105, 617 N.E.2d 639 (1993); In re Knapp, 536 So.2d 1330 (Miss.1988); Grant v. State, 83 Wis.2d 77, 264 N.W.2d 587, 590-91 (1978). “Surely a witness need not be forced to testify on the assumption of prosecutorial sympathy or laxity.” Francis, supra, 375 N.E.2d at 1225.
Thus, a court may only assess the possibility of future prosecution not the probability. In re Keijam T., supra, 628 A.2d at 566. “[Wjhether, ‘as a practical matter,’ such a prosecution is ‘unlikely’ has no bearing.” Co-lantonio, supra, 577 N.E.2d at 318 (quoting Francis, supra, 375 N.E.2d at 1221).
As we have seen, these various federal circuits and state courts conclude that only the possibility, not the probability, of prosecution is controlling in determining whether to uphold a witness’ privilege against self-incrimination. By this we mean that once the court has determined that the proposed testimony is potentially incriminating, the only evaluation left for the court is one that determines whether there is an absolute bar to subsequent prosecution and not what the likelihood may be. By stopping the trial court’s evaluation process with whether the testimony is incriminatory, the trial court is freed from involvement in the executive function and the unjustifiable burden of trying to assess the likelihood of future prosecution.
In Kastigar v. United States, the Supreme Court explained:
[338]*338The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor.
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But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege.
406 U.S. 441, 443-15, 92 S.Ct. 1653, 1655-56, 32 L.Ed.2d 212 (1972) (footnotes omitted). As the Supreme Court there stated, a defendant’s Sixth Amendment right to the benefit of exculpatory testimony must yield to the witness’ constitutional privilege against self-incrimination. See also United States v. Bowe, 698 F.2d 560, 565 (2d Cir.1983); Home v. State, 321 Md. 547, 583 A.2d 726, 728 (1991). When there is a conflict between the Sixth Amendment rights of the accused and the Fifth Amendment privilege of the witness, the right to compel testimony must yield to the witness’ privilege against self-incrimination. See, e.g., United States v. Khan, 728 F.2d 676, 678 (5th Cir.1984) (stating that “an accused’s right to compulsory process must give way to the witness’ Fifth Amendment privilege not to give testimony that would tend to incriminate him”); United States v. Turkish, 623 F.2d 769, 774 (2d Cir.1980) (stating that “the Sixth Amendment’s Compulsory Process Clause gives the defendant the right to bring his witness to court and have the witness’s non-privileged testimony heard, but does not carry with it the additional right to displace a proper claim of privilege, including the privilege against self-incrimination”), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.) (stating that “[t]he Sixth Amendment right of an accused to compulsory process to secure the attendance of a witness does not include the right to compel the witness to waive his Fifth Amendment privilege”), cert. denied, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978); State v. Simms, 170 Conn. 206, 365 A.2d 821, 823 (stating same), cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976); State v. Ramsey, 99 Idaho 1, 576 P.2d 572, 573-74 (1978) (stating same).
In other words, 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 the privilege should be sustained. Consequently, once incrimination is determined or ceded, then without an absolute bar to subsequent prosecution such as double jeopardy, immunity, or the statute of limitations, the court should uphold the witness’ privilege against self-incrimination.1
IV.
We turn now to a different consideration, that is, the contention that, where a defense witness claims the privilege against self-incrimination, either defense witness immunity should be judicially imposed or the prosecutor should be required to grant immunity or risk dismissal of the indictment if the particular testimony is material and exculpatory. Preliminarily, we agree with the overwhelming number of courts, especially in the federal circuits, that have rejected the concept of judicially imposed immunity. See, e.g., United States v. Doe, supra, 465 U.S. at 616-17, 104 S.Ct. at 1244-45; United States v. Baker, 10 F.3d 1374, 1414 (9th Cir.1993), cert. [339]*339denied, — U.S. —, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994); United States v. Quintanilla, 2 F.3d 1469, 1483 (7th Cir.1993); United States v. Mohney, 949 F.2d 1397, 1401-02 (6th Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1940, 118 L.Ed.2d 546 (1992); United States v. Lugg, 282 U.S.App. D.C. 85, 88, 892 F.2d 101, 104 (1989); United States v. Capozzi 883 F.2d 608, 612 n. 7 (8th Cir. 1989), cert. denied, 495 U.S. 918, 110 S.Ct. 1947, 109 L.Ed.2d 310 (1990); United States v. Chagra, 669 F.2d 241, 258 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982); United States v. Klauber, 611 F.2d 512, 517 (4th Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980); United States v. Housand, 550 F.2d 818, 824 (2d Cir.), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977); Earl v. United States, 124 U.S.App. D.C. 77, 80 n. 1. 361 F.2d 531, 534 n. 1 (1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967); People v. Sanchez, 131 Ill.2d 417, 137 Ill.Dec. 629, 634, 546 N.E.2d 574, 579 (1989); State v. Peirce, 364 N.W.2d 801, 808-09 (Minn.1985); State v. Landrum, 53 Ohio St.3d 107, 559 N.E.2d 710, 725 (1990), cert. denied, 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196 (1991); Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320, 1321 (1985); State v. Clark, 576 A.2d 1202, 1206 (R.I.1990). But see Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980) (sanctioning judicial immunity for defense witness).
We find quite persuasive an analysis of defense witness immunity in Turkish, supra. There, the Second Circuit rejected both the Sixth Amendment’s Compulsory Process Clause and the Fifth Amendment’s Due Process Clause (fair trial) as justifications for judicial immunity. The court rejected the argument, which was based on equalizing the powers of the prosecution and the defense, and the general need to pursue the truth. 623 F.2d at 774-75. In passing, the court observed penetratingly that “there is considerable force to the Government’s apprehension that defense witness immunity could create opportunities for undermining the administration of justice by inviting cooperative perjury among law violators.” Id. at 775. We agree with the Turkish court’s conclusion that “[wjithout precluding the possibility of some circumstances not now anticipated, we simply do not find in the Due Process Clause [or the Compulsory Process Clause] a general requirement that defense witness immunity must be ordered whenever it seems fair to grant it.” Id. at 777.
In agreeing with the court in Turkish we also reject, along with other courts, the Third Circuit’s analysis in Government of the Virgin Islands v. Smith, supra, concluding that a court has inherent authority to immunize a witness capable of providing exculpatory testimony for a defendant. In Smith, the court was persuaded by arguments that the defendant was being denied an effective defense presentation due to the inability to introduce exculpatory testimony because a defense witness had invoked the privilege against self-incrimination. 615 F.2d at 970-71. Thus, that court proposed judicially granted immunity when the defendant established (a) the need for the testimony, and (b) the public interest would not be disserved by the grant of immunity. Id. at 973-74. However, “[e]very court of appeals which has considered the question [of court granted immunity] has rejected the Third Circuit’s Smith holding as being a violation of the doctrine of separation of powers.” Capozzi, supra, 883 F.2d at 614 (citing cases); accord United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir.) (“[t]his theory has been rejected by virtually every other court that has considered the issue” (citing cases)), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).2
y.
We agree with most federal circuit courts which have adopted what has been termed the “prosecutorial misconduct” doctrine,3 [340]*340though there is actually no such conduct by the prosecutor in this proceeding. See, e.g., United States v. Mohney, supra, 949 F.2d at 1402; United States v. Chalan, 812 F.2d 1302, 1310 (10th Cir.1987); United States v. Lord, 711 F.2d 887, 891 (9th Cir.1983); Turkish, supra, 623 F.2d at 777. In Virgin Islands v. Smith, supra, the court stated that “under certain circumstances due process may require that the government afford use immunity for a defense witness.” 615 F.2d at 968 (emphasis added). The Smith court noted that in United States v. Morrison, 535 F.2d 223 (3d Cir.1976), the court held that “where prosecutorial misconduct occurred (in that case, intimidation of a defense witness), the government could be directed to either obtain use immunity, so that the witness could testify, or suffer a judgment of acquittal.” Smith, supra, 615 F.2d at 968. Thus, the Smith court concluded that when the prosecutor’s decision not to provide immunity to a defense witness is made “with the deliberate intention of distorting the judicial factfinding process,” the court will enter a judgment of acquittal unless the prosecutor consents to grant immunity. Id. at 968-69 (internal quotations omitted).4
This approach for prosecutorial misconduct first appeared in the District of Columbia Circuit in 1966 in Earl, supra.5 The Earl court suggested in a footnote that prosecuto-rial misconduct in the application of the government’s grant of immunity to some witnesses and not to others may violate due process. Earl, supra, 124 U.S.App. D.C. at 80 n. 1, 361 F.2d at 534 n. 1. The court stated that where the government gives immunity to a prosecution witness while declining to grant immunity to a similarly situated defense witness there could be a due process violation. Id. Other federal circuits have recognized that a trial court might have to order a judgment of acquittal unless the prosecutor grants immunity for a defense witness when there is such “prosecutorial misconduct.” See, e.g., United States v. Bahadar, 954 F.2d 821, 825-26 (2d Cir.), cert. denied, 506 U.S. 850, 113 S.Ct. 149, 121 L.Ed.2d 101 (1992); Angiulo, supra, 897 F.2d at 1191-92; United States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir.1988); United States v. Hooks, 848 F.2d 785, 799 (7th Cir.1988); Jeffers v. Ricketts, 832 F.2d 476, 479 (9th Cir.1987), rev’d on other grounds, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); Lord, supra, 711 F.2d at 891; Morrison, supra, 535 F.2d at 229. The Second Circuit has observed:
Defense witness immunity is required only upon a showing that “(1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and (2) the witness’ testimony will be material, exculpatory and not cumulative and is not obtainable from any other source.”
United States v. Rivera, 971 F.2d 876, 887 (2d Cir.1992) (quoting United States v. Burns, 684 F.2d 1066, 1077 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983) (emphasis added)).
Sometimes, courts have reversed convictions when prosecutorial misconduct has occurred involving the denial of grants of immunity to defense witnesses or when threatening judicial conduct effectively causes the witness to invoke the Fifth Amendment right not to incriminate. In Morrison, supra, 535 F.2d at 227-28, the United States Attorney drove a potential defense witness to invoke the Fifth Amendment privilege by repeatedly warning the witness about peijury and potential prosecution for other crimes and by conducting an intimidating personal interview prior to [341]*341the testimony. The court reversed the conviction due to the prosecutorial misconduct and as a remedy ordered that upon retrial, a judgment of acquittal be entered unless the government requested immunity for the witness under 18 U.S.C. §§ 6002-6003 (1995 & 1996 Supp.). Id. at 228-29. In Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the Supreme Court reversed a conviction where the judge actually singled out the defendant’s only witness for a lengthy admonition on the dangers of perjury and the probability of conviction for perjury if the witness testified and the witness then refused to testify; see also United States v. Heller, 830 F.2d 150 (11th Cir.1987) (reversing a conviction where there were threats and interference by investigating IRS agents who coerced the witness accountant to testify falsely against the defendant).
In Lord, supra, the court remanded for fact-finding to determine whether the prosecutor had deliberately caused the witness to refuse to testify by telling the witness that although his part in the crime “was so minor that he really didn’t want to prosecute me, but he would, depending on my testimony,” 711 F.2d at 889. In Smith, supra, a defense witness would have identified his co-attackers as being persons other than several of the defendants. 615 F.2d at 966-67. The Virgin Islands Attorney General’s office, which had exclusive jurisdiction to prosecute the witness, offered to grant that witness immunity if, out of concerns of comity, the United States Attorney failed to consent (which it did) and the court concluded this rose to the level of misconduct when no reason, let alone a legitimate reason, was put forward to justify the failure to consent. Id. In United States v. De Palma, 476 F.Supp. 775 (S.D.N.Y.1979), the trial court granted a new trial when the government selectively exercised its immunity power to enhance its ease by granting immunity to some witnesses, but refusing to grant immunity to similarly situated defense witnesses.
Here, however, the prosecutor has committed no wrongdoing in its treatment of a defense witness or an immunity grant and so, with this judicial background, we proceed to consider the precise issue presented in this ease.
VI.
If an appropriate factual situation arises in the Fifth Amendment-Sixth Amendment context, we favor what has been termed “the carrot-and-stick approach.” United States v. Bahadar, supra, 954 F.2d at 826. This leaves the defense witness immunity decision to the executive branch but reserves power in the judiciary “to subject the government to certain choices of action.” Id.6
According to the Second Circuit in Baha-dar, supra, defense witness immunity is required when “the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment.” Id. (citing United States v. Burns, supra, 684 F.2d at 1067). Further, the witness’ testimony giving rise to the problem must be (a) material, (b) exculpatory, (c) not cumulative, and (d) unobtainable from any other source. United States v. Rivera, supra, 971 F.2d at 887; United States v. Todaro, 744 F.2d 5, 9 (2d Cir.1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985); Burns, supra, 684 F.2d at 1077; United States v. Calvente, 722 F.2d 1019, 1025 (2d Cir.1983), cert. denied, 471 U.S. 1021, 105 S.Ct. 2030, 85 L.Ed.2d 313 (1985) (cited approvingly by Bahadar, supra, 954 F.2d at 826). These are stringent standards and deliberately so because of the intrusion into what would otherwise be the sole prerogative of the executive branch.
With this background, we now turn to the more difficult issue presented by the facts in [342]*342this case where there is no prosecutorial misconduct but where the same Fifth Amendment due process and Sixth Amendment fair trial issues are presented.7
At oral argument in this case, the United States Attorney related to the court, in some detail, a worthwhile approach on this issue for consideration on occasions presenting these issues, assumedly where a defense witness possessing material exculpatory and nan-cumulative evidence which is unobtainable from any other source will invoke the Fifth Amendment privilege against self-incrimination unless granted executive “use” immunity.8 The government proposed that such a witness could be debriefed by the government with an accompanying governmental award of a limited immunity solely for these debriefing purposes. Following a debriefing,9 if the United States Attorney were to have a reasonable basis for not granting “use” immunity to the witness, such as, for example, considerations of potential future prosecution, an ongoing investigation, clear indications of potential perjury, or the excusable lack of information during the debriefing to make an informed immunity decision, see Turkish, supra, 623 F.2d at 775-76, and United States v. Thevis, 665 F.2d 616, 639-40 (5th Cir.1982), then, under such circumstances, or for some other enumerated sound reason, the refusal to immunize by the United States Attorney would hardly be prosecutorial misconduct, as discussed in the preceding cases. This is not to say that, in this connection, the prosecutor may in effect usurp the usual jury function of judging credibility. But from the government’s prior investigation of the facts, threat of a blatant perjury, for an example, may sometimes be so apparent as to be demonstrable to the trial judge. If so, the government could not reasonably be expected to cloak in advance such testimony with immunity.10 The immunity of which we speak is the statutory “use immunity” as defined in 18 U.S.C. § 6002:
[N]o testimony or other information compelled ... (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
Thus, “use immunity” generally prevents the government from using, directly or indirectly, any statements made by an individual or any information derived from those statements, in subsequent criminal proceedings. See, e.g., Kastigar, supra, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212; Pillsbury v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983).
If, however, the government, after a sufficient debriefing of the potential witness, could provide no justifiable reason (a tactical advantage would not be sufficient) for not granting “use” immunity to the proposed vital defense witness, then, depending upon the factual situation, the failure to provide immunity may give rise to the question of whether this amounts to conduct which would, unless altered, result in a distortion of the fact-finding process.11 If so, this may be seen as [343]*343a denial of due process of law.12 See United States v. Bustamante, 45 F.3d 938, 943 (5th Cir.1995) (use of immunity privilege to unfairly skew the facts presented to the jury violates defendant’s due process rights). This is a question for an appropriate ruling by the trial court, after a summary hearing. See United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir.1991).
If, after a hearing, the trial court were to conclude that, all circumstances considered, the defendant will not receive a fair trial without the testimony of a crucial defense witness whose testimony meets the mandatory requirements we have previously spelled out in this opinion (exculpatory evidence, etc.), and importantly, the government does not submit to the court a reasonable basis for not affording use immunity to the crucial witness in order to procure the vital defense testimony, then the trial court would be justified in informing the government that it must make the choice between dismissal of the indictment or some other commensurate remedy which the court may fashion13 on Sixth Amendment and due process grounds, or affording use immunity to the crucial defense witness involved who is shown to be the only witness who, if believed, would clearly establish a reasonable doubt on the defendant’s guilt.
In reaching its ruling on this issue, however, the trial court should be acutely aware that the exclusive constitutional authority to execute the laws and decide whom to prosecute lies in the executive branch. It is not for the judiciary to intrude into this prosecu-torial function. In an appropriate case the trial court may present the prosecution with the choice of either dismissal of the indictment14 (or some other commensurate remedy) or the grant of use immunity to the crucial defense witness,15 as we have here defined such a witness, if the court concludes the prosecutor is distorting the fact-finding process in relation to the issue.16 Because of the separation of powers, it is of course not the function of the trial judge to evaluate the judgment of the prosecutor in conducting the trial. On this particular issue of defense witness immunity, the trial court should consider only whether, after the issue has been explored, the government is abusing its discretion and distorting the judicial fact-finding process in refusing to immunize a proffered crucial defense witness, thereby preventing a fair trial for the defendant. Hooks, supra, 848 F.2d at 799; Bustamante, supra, 45 F.3d at 943; Jeffers v. Ricketts, supra, 832 F.2d at 479; United States v. Salerno, 937 F.2d 797, 807 (2d Cir.1991), rev’d on other grounds, 505 U.S. 317, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992).
Under this procedure, however, if the witness refuses to be debriefed by the government, notwithstanding a potential offer by the government to grant the foregoing limited immunity for the purpose of debriefing, prosecutorial bad faith would hardly be present if a formal grant of “use” immunity to the witness is refused by the government, as the prosecutor would not have obtained sufficient information to reach an intelligent conclusion for immunity purposes regarding the proposed testimony of the defense witness. So, the prosecutor would not then have acted unreasonably thereby denying the defendant due process of law. Although a witness may not be compelled to be debriefed, because limited immunity for a debriefing may be negotiated, this procedure would reasonably address due process and Sixth Amendment interests of a defendant under the circumstances.
[344]*344VII.
In differing with separate opinions in this ease, it is our position that the thrust of the majority opinion emanates from settled law that the government has a constitutional duty to volunteer exculpatory evidence to a criminal defendant.17 United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Trevino, 89 F.3d 187 (4th Cir.1996). This constitutional obligation is not measured by the good faith or the bad faith of the prosecutor, Agurs, supra, 427 U.S. at 110, 96 S.Ct. at 2400, and those latter terms are employed in the objective not the personal sense.
When we set forth here the initial stringent four evidential standards (material, exculpatory, non-cumulative and not obtainable from any other source), the case is put into the context of whether without evidence of that nature, and assuming it can be made available, there can reasonably be a fair trial for the defendant. This was discussed at some length with the government at oral argument, during which the government expressed definite, measured views on the subject.
Turning to the focal point in this case, i.e., the immunity issue — with immunity power of course being vested exclusively in the executive branch — the problem turns to whether, given a constitutional duty of the prosecutor to volunteer exculpatory evidence to a criminal defendant, the prosecutor should furnish the immunity key to unlock exculpatory evidence from the defense witness who is asserting the privilege against self-incrimination when asked to testify about that crucial information. We assume, of course, that the prosecutor would first be given the opportunity to explore the witness in order to determine whether the government could fairly be requested by the court to immunize that particular witness (for example, a showing of demonstrable perjury forthcoming from the proposed witness would justify denying immunity).
If after probing the proposed witness the prosecutor is not able to relate to the trial judge a sound reason for not immunizing the crucial defense witness, the government may be effectively blocking the defendant’s access to a fair trial. Since it is settled law that the executive branch has a constitutional duty to volunteer exculpatory evidence to a defendant, the question arises as to whether there should be a related obligation to afford immunity to a crucial defense witness claiming the privilege against self-incrimination, so as to unlock that exculpatory testimony, always assuming the government can offer the trial judge no sound reason to withhold immunity from the particular witness. Under the circumstances, if the government declines to recognize such obligation, it would remain for the trial judge to consider an appropriate sanction in the proceeding, including dismissal of the indictment where warranted.
VIII.
To summarize, the trial court is not required to assess the likelihood of prosecution when a potential defense witness refuses to testify due to the invocation of the privilege against self-incrimination. This was the Joggers procedure, which is now no longer authorized. The process required now is limited to a determination by the trial court as to whether the testimony would be incriminatory and thus create the possibility of future prosecution. If so, the claim would have validity under the law.
If immunity of the crucial defense witness is then sought, the defendant must first establish to the trial court’s satisfaction that the proposed testimony is (a) material, (b) clearly exculpatory, (c) non-cumulative, and (d) unobtainable from any other source. These conditions are mandatory. In the discretion of the trial judge, the defense proffer may initially be made ex parte by the defense, with the prosecutor thereafter becoming engaged in the process. If, on the initial [345]*345showing, the trial judge concludes preliminarily that the process should continue, the next step might be to institute a debriefing process of the proposed defense witness by the prosecution in order to determine whether the government will accede to a grant of use immunity to the witness, which process may require some exploration as to the method of doing so, between the prosecutor and the defense witness or the latter’s counsel.
We anticipate that a debriefing procedure such as described by the government would, if implemented, provide the trial court with a suitable procedure to determine whether in the opinion of the trial court a proposed defense witness should be granted “use immunity” by the executive branch. In the trial court, the defendant should be required to raise this issue pre-trial, else it might seriously derail the trial if raised after it commences. Only for good cause shown should this pre-trial procedural requirement be altered.
If after a debriefing procedure and investigation the government were to decline to grant “use” immunity to the proposed defense witness,18 who by definition must possess material, exculpatory, non-cumulative evidence, unobtainable from any other source,19 it would be for the trial court to explore the basis of the government’s refusal and decide whether there will be a distortion of the fact-finding process and the indictment should therefore be dismissed for a denial of due process and Sixth Amendment rights to the defendant, or some other communsurate remedy, unless the government agrees to grant “use” immunity to the crucial witness.20 The grant of immunity is of course an executive not a judicial function.21 We would expect, however, that the procedure here suggested by the government in the matter of advance defense witness debriefing, or some other suitable procedure in order to determine whether immunity is warranted, would naturally be pursued in good faith and would provide the trial court with a means to balance the legitimate governmental interest with the defendant’s Sixth Amendment right to compulsory process and Fifth Amendment right to due process of law by way of a fair trial.
This is a procedure to be pursued cautiously, however, and with especial regard for the public interest,22 as it goes further than the. doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (where there was evidence in the government’s possession), and imposes a governmental burden, depending upon the particular facts, “to assist the defense in extracting from others evidence the Government does not have.” Turkish, supra, 623 F.2d at 775. It should be apparent from this opinion that due to the separation of powers, this process has strict confines, and deliberately so. But, balancing all the considerations, we consider that if fairly administered, as we necessarily assume [346]*346it would be, it has sound constitutional underpinning.
Remanded for farther proceedings consistent with this opinion.
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