¶1concurring in part; dissenting in part.
¶2The trial court’s comments regarding the state’s ability to use defendant’s testimony if she testified pretrial and later refused to testify were made during the October 30 hearing in which defendant was held in civil contempt for refusing to be sworn as a witness. The majority holds that issue to be moot. I agree.
¶3On November 3, 1987, during jury selection and out of the presence of the jury, the prosecutor requested a hearing pursuant to ORS 136.617. His purpose was to determine if defendant was going to continue to refuse to testify. If so, he *21intended to request that she be held in criminal contempt. Defendant objected on the basis that the jury had not been sworn and there was no factfinding body to hear her testimony. The trial court overruled defendant’s objection, holding that it would be highly prejudicial to the defendants in the murder trial if defendant were called to the witness stand and then refused to take the oath.
¶4The majority holds that the trial court erred in overruling defendant’s objection and holds that it should have continued the hearing until defendant was called as a witness in the normal course of trial. The majority states:
“Although the court could properly call defendant when it did in order to determine whether she would testify at the trial, it could not order her to answer any questions that did not relate to whether she would testify.”
¶5After the trial court overruled defendant’s objection, she was called to the stand. That time she consented to being sworn. She was first asked if she was related to one of the defendants in the murder trial. She invoked her Fifth Amendment privilege. The state offered her immunity. The court made the findings required by ORS 136.617 and ordered her to testify. The court said:
“I will order you to testify and to answer the questions posed to you, Mrs. Nefstad, and caution you that I would be required to punish you for contempt if you refuse to do so.”
¶6Defendant replied:
“I respectfully decline, Your Honor.”
¶7The prosecutor requested that the court hold defendant in criminal contempt and then asked:
Question: “[W]ell, before I ask for that finding, Your Honor, can I direct one further question to the witness?
Court: “All right.
Question: “Mrs. Nefstad, on April 12th of this year, is it not a fact that you were not married to the Defendant but you were in fact cohabitating with him, the Defendant Nefstad, I should say?
Answer: “I decline.
Question: “And, Mrs. Nefstad, let me ask you this: If I were to ask you a series of questions concerning the events of April *2212th and the two or three weeks following those events and the conduct of both Nefstad and Miranda during that time, would you decline to answer those questions as well?
Answer: “Yes.
Question: “Would you decline to answer questions concerning those events if I asked them now following the Court’s order to you to answer?
Answer: “Yes.”
¶8Contrary to the majority’s suggestion, what the trial court was doing was allowing the prosecutor to make a record under the dictates of ORS 136.617 by ascertaining if in fact defendant was refusing to testify. Defendant’s objection was based on the fact that the court was holding the hearing authorized by that statute before the jury was sworn. As the majority acknowledges, a court has the discretion to determine whether a witness is going to refuse to testify at any time during a criminal proceeding. I dissent from that portion of the majority opinion.
¶9The majority and I also differ as to the contempt that occurred on December 4,1987. The majority holds that defendant’s refusals to testify were separate events during different types of hearings at different times and, even assuming that a constitutional double jeopardy analysis applies, the contempts did not constitute the same offense. I disagree. Defendant’s refusals to testify were part of a continuing contempt for refusing to testify during the same criminal trial. Under these circumstances, her refusals to testify do constitute the same offense, and I would hold that only one criminal punishment could be imposed.
¶10For these reasons, I dissent.