own recollection of the events in which he participated, as distinguished from his recollection of the Poindexter immunized statements, represented an obvious alternative means to avoid becoming a trial witness.
As indicated, the Court takes North's alleged inability to differentiate with a grain of salt. It seems unlikely that a witness who was a major and active participant in the events themselves
would be unable to distinguish between the version of events described in another's testimony and his own recollection of what occurred. Yet that is what North claimed, and the question is whether the Court's doubts concerning credibility justify it in rejecting his testimony as to the basis for his memory of events.
After considerable reflection, the Court has decided that it will accept the North assertion, and on that basis hold him to be so tainted by his exposure to the Poindexter testimony that his own independent knowledge of the events cannot carry the day. In view of the inability of the judicial system to take independent evidence of the North thought processes, that individual's testimony at the Kastigar hearing stands necessarily unrefuted. With the issue in that posture, the Court could decline to credit that testimony only if it were to reject North's assertions as entirely unbelievable.
Were the issue one of lesser gravity, the Court would be prepared to do just that.
But the issue here revolves around the constitutional rights of the defendant. At bottom, what is before the Court is the self-incrimination clause of the Fifth Amendment which underlies the immunity - Kastigar doctrine -- a doctrine which occupies a central place in the American constitutional system. If in its application of the facts to that doctrine the Court is to err, it is most consistent with its obligations to the Constitution and the Bill of Rights that it err on the side of protecting Poindexter's constitutional right not to be convicted with the use of his own testimony.
That is accordingly what it will do. North will therefore not be required to testify on any subject with respect to which his testimony is based on the Poindexter statements to the congressional committees.
However, this ruling will not entirely excuse North from appearing as a witness at the trial, for with respect to two areas his recollection could not possibly be confused by the Poindexter statements. First, North gave testimony to the congressional committees before Poindexter did, and his testimony to these bodies therefore could not have been influenced by the statements Poindexter made to them thereafter. Second, not all the evidence North might be expected to provide at the trial was the subject of immunized testimony by Poindexter. If Poindexter did not testify as to a particular matter, testimony at his trial by North concerning that matter would not be an invasion of Poindexter's Fifth Amendment rights.
In accordance with these rulings, the Court hereby directs the government that, although it may call Oliver North as a witness at the trial of this case, it may only elicit evidence from him that will be based on statements made by North prior to July 15, 1987, or that was not also the subject of Poindexter's immunized testimony.
On the basis of the measures discussed above, the Court is confident that the government's trial witnesses will testify from knowledge that is independent of the information elicited from Poindexter at the congressional hearings. As with any determination that is prospective in character, the Court's finding cannot absolutely ensure that, somehow, some unpredictable trial event may not occur to alter the situation -- particularly as several counsel will be examining and cross-examining, and as the witnesses have varying degrees of loyalty to the Independent Counsel or may even be aligned in interest with Poindexter, as well as perhaps having interests of their own. To protect against such contingencies, the Court expects to take several additional measures: (1) it will admonish each witness at the outset of his testimony not to refer to or rely on what he may have heard, read, or learned from Poindexter's immunized testimony; (2) it will cut off any line of questioning, or any answers, that would appear to invade this prohibited territory; and (3) if necessary, it will hold another Kastigar hearing at the conclusion of the trial in the event of a conviction of the defendant.
The motion to dismiss the indictment on Kastigar grounds is denied.