Lundberg Stratton, J.
Matthew Reiner was convicted by a jury of involuntary manslaughter for the death of his two-month-old infant son, Alex Reiner. Alex died as a result of “shaken baby syndrome.” In State v. Reiner (2000), 89 Ohio St.3d 342, 343-345, 731 N.E.2d 662, 666-667, the court set forth the underlying facts of this case:
“On June 15,1995, Deborah S. Reiner gave birth to twin boys named Alex and Derek. Both boys were premature at birth but otherwise healthy. The Reiners also had a two-year-old daughter named Amy. Following the birth of the twins, both parents took time off from work to care for them. Matthew Reiner took leave from his job as an engineer from June 15 to July 25, 1995. Deborah Reiner, a dentist, did not return to work until August 14,1995.
“The Reiners hired a full-time babysitter, Susan Batt, age twenty-four, to care for their three children. Susan Batt began working on July 25, 1995, under Deborah Reiner’s supervision while Susan Batt became acclimated to the family. During the first week of Susan Batt’s employment, Deborah Reiner spent most of her time at home. In the final two weeks before Deborah Reiner returned to [602] work, she left the home on several occasions with Amy, leaving Susan Batt alone with the twins. Susan Batt became the full-time exclusive childcare provider on August 14,1995.
“Over a period of two weeks, the following events occurred. Aex became ill the weekend of August 12, 1995. He appeared to be achy and vomited several times. Deborah Reiner called the pediatrician and then took Aex to an outpatient clinic on Sunday, August 13. The clinic doctor diagnosed stomach flu and recommended that Deborah Reiner give Aex Pedialyte.
“By Wednesday, August 16, 1995, Aex had improved and appeared to have recovered. The twins’ pediatrician performed a well-care examination of both boys that day. The results were unremarkable.
“Deborah Reiner stayed home with the children on Wednesday, August 23, 1995, her regular day off. Aex seemed achy that day but had no fever. On Thursday, August 24, 1995, Susan Batt telephoned Matthew Reiner at work and reported that Aex had vomited in the morning. He told her to give Aex some Pedialyte. On Friday, August 25, Susan Batt telephoned Deborah Reiner at work to report that Aex had vomited. Deborah Reiner’s mother came over Friday afternoon to help care for the children. Aex remained ill and vomiting over the weekend, still with no fever.
“On Monday, August 28, 1995, when Deborah Reiner returned home after work, Susan Batt reported that Aex had eaten well and taken two five-hour naps that day. He appeared achy but did not have a fever, and Susan Batt had given him Tylenol. Susan Batt left the Reiners that evening between 5:30 and 6:00 p.m. Later that evening, Deborah Reiner’s parents stopped by to drop off Amy, who had spent the day with them. They stayed and visited until 7:30 p.m. when Matthew Reiner arrived home.
“Aex vomited again that evening at 9:00 p.m. The couple put the twins to bed at approximately 10:30 that night. Later, they heard Aex whimpering. Matthew Reiner took Aex downstairs. He claimed that he laid Aex on his (Matthew’s) chest to try to get the baby comfortable and to fall asleep. Within a half hour, Aex’s breathing became labored and he became unresponsive. Matthew Reiner took Aex to his bedroom to awaken his wife. She could not get Aex to respond, so Matthew Reiner called 911.
“When emergency personnel arrived, Aex had no pulse and was not breathing. His skin was blue. They transported Aex to a nearby hospital, where he was placed on a respirator. Two days later, on August 30, 1995, Aex was removed from life support and died.
“Dr. James Patrick, Lucas County Coroner, performed an autopsy. He concluded that Aex had died from ‘shaken baby syndrome.’ Dr. Patrick estimat[603] ed that the time of injury was the evening of Monday, August 28, 1995, most likely within minutes of the onset of respiratory arrest when Matthew Reiner had been alone with Alex, but at most, within two to three hours of the onset.
“A grand jury indicted Matthew Reiner for involuntary manslaughter. The case proceeded to trial. The key issue at trial was the timing of the fatal trauma to Alex. The defense theory was that Susan Batt, not Matthew Reiner, was the culpable party. The defense presented evidence that all three Reiner children had been healthy from birth until the weekend of August 11, 1995, after Susan Batt became employed. Deborah Reiner testified that her children had no medical problems from the time of Alex’s death until the trial, after Susan Batt left the Reiners’ employ. Deborah Reiner also testified that no other family members had contracted a stomach virus or suffered symptoms similar to Alex’s during the last two weeks of August despite their close proximity to Alex, in particular his twin, Derek, who slept in the same crib. There also was evidence of additional injuries to Alex and injuries to Derek. A hospital radiologist testified that x-ray films of Alex taken at the hospital on August 29, 1995, indicated a broken rib and broken leg. Subsequent x-rays of Derek indicated that he suffered from three broken ribs.”
The Reiners’ babysitter, Susan Batt, was subpoenaed by both the prosecution and the defense. Upon advice of counsel, she invoked her Fifth Amendment privilege against self-incrimination and refused to testify. She had also invoked her Fifth Amendment privilege while testifying in the juvenile court proceeding. Batt’s counsel informed the court that she would not testify unless granted full immunity from prosecution.
The prosecutor acknowledged that Batt was not the subject of any criminal investigation. The prosecutor questioned whether a grant of immunity was applicable in this case, since during the investigation Batt had clearly indicated she lacked culpability. Nevertheless, Batt’s counsel insisted that Batt would assert her Fifth Amendment rights if called to testify by either the prosecution or the defense. Consequently, the prosecution requested that the court grant Susan Batt transactional immunity pursuant to R.C. 2945.44 and compel her to testify.
The court heard arguments from the defense, as well as from counsel for Deborah Reiner and the guardian ad litem, for the Reiners’ children that a grant of immunity to Batt would not further the administration of justice. The court, however, decided that Batt’s testimony should be available and granted her transactional immunity. Susan Batt subsequently testified and denied all culpability. She explained to the jury that she had refused to answer questions without a grant of immunity upon the advice of counsel although she had done nothing wrong.
[604] On September 23, 1996, a jury convicted Matthew Reiner of involuntary manslaughter. Matthew Reiner appealed his conviction to the Lucas County Court of Appeals. The appellate court affirmed the trial court’s grant of transactional immunity to Susan Batt. State v. Reiner (Dec. 18, 1998), Lucas App. No. L-97-1002, unreported, 1998 WL 879833.
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Lundberg Stratton, J.
Matthew Reiner was convicted by a jury of involuntary manslaughter for the death of his two-month-old infant son, Alex Reiner. Alex died as a result of “shaken baby syndrome.” In State v. Reiner (2000), 89 Ohio St.3d 342, 343-345, 731 N.E.2d 662, 666-667, the court set forth the underlying facts of this case:
“On June 15,1995, Deborah S. Reiner gave birth to twin boys named Alex and Derek. Both boys were premature at birth but otherwise healthy. The Reiners also had a two-year-old daughter named Amy. Following the birth of the twins, both parents took time off from work to care for them. Matthew Reiner took leave from his job as an engineer from June 15 to July 25, 1995. Deborah Reiner, a dentist, did not return to work until August 14,1995.
“The Reiners hired a full-time babysitter, Susan Batt, age twenty-four, to care for their three children. Susan Batt began working on July 25, 1995, under Deborah Reiner’s supervision while Susan Batt became acclimated to the family. During the first week of Susan Batt’s employment, Deborah Reiner spent most of her time at home. In the final two weeks before Deborah Reiner returned to [602] work, she left the home on several occasions with Amy, leaving Susan Batt alone with the twins. Susan Batt became the full-time exclusive childcare provider on August 14,1995.
“Over a period of two weeks, the following events occurred. Aex became ill the weekend of August 12, 1995. He appeared to be achy and vomited several times. Deborah Reiner called the pediatrician and then took Aex to an outpatient clinic on Sunday, August 13. The clinic doctor diagnosed stomach flu and recommended that Deborah Reiner give Aex Pedialyte.
“By Wednesday, August 16, 1995, Aex had improved and appeared to have recovered. The twins’ pediatrician performed a well-care examination of both boys that day. The results were unremarkable.
“Deborah Reiner stayed home with the children on Wednesday, August 23, 1995, her regular day off. Aex seemed achy that day but had no fever. On Thursday, August 24, 1995, Susan Batt telephoned Matthew Reiner at work and reported that Aex had vomited in the morning. He told her to give Aex some Pedialyte. On Friday, August 25, Susan Batt telephoned Deborah Reiner at work to report that Aex had vomited. Deborah Reiner’s mother came over Friday afternoon to help care for the children. Aex remained ill and vomiting over the weekend, still with no fever.
“On Monday, August 28, 1995, when Deborah Reiner returned home after work, Susan Batt reported that Aex had eaten well and taken two five-hour naps that day. He appeared achy but did not have a fever, and Susan Batt had given him Tylenol. Susan Batt left the Reiners that evening between 5:30 and 6:00 p.m. Later that evening, Deborah Reiner’s parents stopped by to drop off Amy, who had spent the day with them. They stayed and visited until 7:30 p.m. when Matthew Reiner arrived home.
“Aex vomited again that evening at 9:00 p.m. The couple put the twins to bed at approximately 10:30 that night. Later, they heard Aex whimpering. Matthew Reiner took Aex downstairs. He claimed that he laid Aex on his (Matthew’s) chest to try to get the baby comfortable and to fall asleep. Within a half hour, Aex’s breathing became labored and he became unresponsive. Matthew Reiner took Aex to his bedroom to awaken his wife. She could not get Aex to respond, so Matthew Reiner called 911.
“When emergency personnel arrived, Aex had no pulse and was not breathing. His skin was blue. They transported Aex to a nearby hospital, where he was placed on a respirator. Two days later, on August 30, 1995, Aex was removed from life support and died.
“Dr. James Patrick, Lucas County Coroner, performed an autopsy. He concluded that Aex had died from ‘shaken baby syndrome.’ Dr. Patrick estimat[603] ed that the time of injury was the evening of Monday, August 28, 1995, most likely within minutes of the onset of respiratory arrest when Matthew Reiner had been alone with Alex, but at most, within two to three hours of the onset.
“A grand jury indicted Matthew Reiner for involuntary manslaughter. The case proceeded to trial. The key issue at trial was the timing of the fatal trauma to Alex. The defense theory was that Susan Batt, not Matthew Reiner, was the culpable party. The defense presented evidence that all three Reiner children had been healthy from birth until the weekend of August 11, 1995, after Susan Batt became employed. Deborah Reiner testified that her children had no medical problems from the time of Alex’s death until the trial, after Susan Batt left the Reiners’ employ. Deborah Reiner also testified that no other family members had contracted a stomach virus or suffered symptoms similar to Alex’s during the last two weeks of August despite their close proximity to Alex, in particular his twin, Derek, who slept in the same crib. There also was evidence of additional injuries to Alex and injuries to Derek. A hospital radiologist testified that x-ray films of Alex taken at the hospital on August 29, 1995, indicated a broken rib and broken leg. Subsequent x-rays of Derek indicated that he suffered from three broken ribs.”
The Reiners’ babysitter, Susan Batt, was subpoenaed by both the prosecution and the defense. Upon advice of counsel, she invoked her Fifth Amendment privilege against self-incrimination and refused to testify. She had also invoked her Fifth Amendment privilege while testifying in the juvenile court proceeding. Batt’s counsel informed the court that she would not testify unless granted full immunity from prosecution.
The prosecutor acknowledged that Batt was not the subject of any criminal investigation. The prosecutor questioned whether a grant of immunity was applicable in this case, since during the investigation Batt had clearly indicated she lacked culpability. Nevertheless, Batt’s counsel insisted that Batt would assert her Fifth Amendment rights if called to testify by either the prosecution or the defense. Consequently, the prosecution requested that the court grant Susan Batt transactional immunity pursuant to R.C. 2945.44 and compel her to testify.
The court heard arguments from the defense, as well as from counsel for Deborah Reiner and the guardian ad litem, for the Reiners’ children that a grant of immunity to Batt would not further the administration of justice. The court, however, decided that Batt’s testimony should be available and granted her transactional immunity. Susan Batt subsequently testified and denied all culpability. She explained to the jury that she had refused to answer questions without a grant of immunity upon the advice of counsel although she had done nothing wrong.
[604] On September 23, 1996, a jury convicted Matthew Reiner of involuntary manslaughter. Matthew Reiner appealed his conviction to the Lucas County Court of Appeals. The appellate court affirmed the trial court’s grant of transactional immunity to Susan Batt. State v. Reiner (Dec. 18, 1998), Lucas App. No. L-97-1002, unreported, 1998 WL 879833.
State v. Reiner (2000), 89 Ohio St.3d 342, 731 N.E.2d 662 (“Reiner F), affirmed in part, reversed in part, and remanded to the trial court for a new trial consistent with the court’s opinion. Reiner I concluded that the trial court had wrongfully granted immunity to Susan Batt. Reiner I held that the grant of immunity was unlawful because Batt lacked a valid Fifth Amendment privilege against self-incrimination, and it seriously prejudiced the rights of the defendant. Id. at 355, 731 N.E.2d at 675.
The United States Supreme Court reversed Reiner I to the extent that the opinion held that Batt lacked a valid Fifth Amendment privilege. Ohio v. Reiner (2001), 532 U.S. 17, 121 S.Ct. 1252, 149 L.Ed.2d 158. The United States Supreme Court held that Batt had “reasonable cause” to apprehend danger from her answers if questioned at trial, although she denied any involvement in the abuse of the Reiner children. Id. at-, 121 S.Ct. at 1255, 149 L.Ed.2d at 162-163. The court reasoned that Batt spent extended periods of time alone with Alex in the weeks before his death. She was with him within the potential time frame of the fatal trauma. The defense theory was that Batt was responsible for the baby’s death. Under these circumstances, it was reasonable for Batt to fear that her answers to some questions might tend to incriminate her. The Supreme Court stated, “We do not, of course, address the question whether immunity from suit under § 2945.44 was appropriate.” Id. at -, 121 S.Ct. at 1255, 149 L.Ed.2d at 163. The Supreme Court then remanded for further proceedings consistent with its opinion.
Pursuant to Ohio v. Reiner, we reverse Reiner I to the extent that it held that Batt lacked a valid Fifth Amendment privilege against self-incrimination. Nevertheless, we affirm our decision in Reiner I that the grant of immunity to Batt resulted in serious prejudice to the defendant and did not further the administration of justice. R.C. 2945.44.
Immunity is a prosecutorial tool utilized to fulfill the government’s need for testimony. State ex rel. Leis v. Outcalt (1982), 1 Ohio St.3d 147, 149, 1 OBR 181, 183, 438 N.E.2d 443, 446. The government typically requests that immunity be granted to a witness who is culpable to some extent but whose testimony will also implicate a defendant. Usually the witness’s involvement in the situation is of a lesser nature. The government is willing to forgo prosecution of the less culpable witness in order to obtain testimony that is necessary to successfully prosecute the defendant.
[605] Here, the prosecution did not have two potentially culpable persons. Instead, this was an either/or situation. Either Reiner was guilty or Susan Batt was guilty. The government chose to indict Reiner and claimed that there was insufficient evidence to indict Batt. Batt continually claimed her innocence. However, immunity is not appropriate in the either/or situation; it could actually hinder the search for truth. The jury should have been permitted to hear Batt take the Fifth Amendment and to evaluate her testimony on that basis. The defense would have been able to present its theory of the babysitter’s culpability without the court’s giving the jury the impression that Batt was immune from prosecution because she did not commit the crime. Therefore, it did not further the administration of justice when the trial court agreed to grant her immunity from future prosecution. Instead, it severely prejudiced the rights of the defendant.
Therefore, we reverse our holding that Susan Batt lacked a valid Fifth Amendment privilege against self-incrimination; however, we affirm our holding that the trial court’s grant of immunity severely prejudiced the rights of the defendant and did not further the administration of justice. Should the state retry the defendant, Batt may assert her Fifth Amendment right against self-incrimination.
Judgment accordingly.
Douglas and F.E. Sweeney, JJ., concur..
Pfeifer, J., concurs in judgment only.
Moyer, C.J., Wolff and Cook, JJ., dissent.
William H. Wolff, Jr., J., of the Second Appellate District, sitting for Resnick,