State v. Belanger

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-025

Filing Date: May 12, 2009

Docket No. 30,654

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

ISAAC BELANGER,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Ross C. Sanchez, District Judge

Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

BOSSON, Justice.

{1} More than twenty-five years ago, this Court’s Rules of Criminal Procedure
Committee (“the Committee”) opined that use-and-derivative-use immunity for witnesses
(“use immunity”) should be available at the request of either the prosecution or the accused.
Although that view had some limited support in federal case law, ultimately it did not prevail
in our state jurisprudence. Since then, this Court has embraced the view that use immunity
is available only at the behest of the prosecution.

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{2} As will be discussed at length in this opinion, the case before us makes clear that
there are times, however limited, when a trial court must exercise its own review and decide
whether to grant use immunity to a defense witness, even without the concurrence of the
prosecution. The legitimate needs of the prosecution can and must be balanced against the
potential for erosion of important constitutional rights of the accused. In coming to this
conclusion, we rely on New Mexico law, not federal precedents, and we reluctantly overrule
some of our precedent to the extent those cases fail to recognize the critical distinction
between our state’s jurisprudence and the federal rules. We depart from our precedents
cautiously, and only after concluding that our earlier opinions were either poorly reasoned,
based on an unwarranted reliance on federal law, or both. Based on this departure from
precedent, we reverse the Court of Appeals and remand to the district court for further
proceedings consistent with this opinion.

BACKGROUND

{3} A Bernalillo County grand jury indicted Isaac Belanger (“Defendant”) on August 31,
2004, on one count of criminal sexual penetration of a minor (“CSPM”), two counts of
attempted CSPM, three counts of battery, one count of kidnapping, and two counts of bribery
of a witness. Defendant’s niece, S.S., accused him of pinning her against a bathroom wall,
forcing her to kiss him, putting his hand down her pants and penetrating her vagina with his
finger. She was 12-years old at the time, and Defendant was 28. The incident allegedly took
place at the house of Defendant’s father (the girl’s grandfather), after an argument about who
was going to use the phone. Defendant has denied any wrongdoing. Defendant asserts, and
the State does not dispute, that there are no other known witnesses to the alleged incident,
and no physical evidence implicating Defendant. Thus, the credibility of S.S., as the sole
eye-witness, would appear to be pivotal at trial.

{4} In pre-trial proceedings, Defendant attempted to interview another juvenile, D.P.,
against whom S.S. had leveled similar sexually related charges. The incident between S.S.
and D.P. occurred just weeks before the incident involving Defendant. Defendant claims that
prosecutors dropped the charges against D.P. after it became clear that S.S. had fabricated
her claims against D.P. Thus, Defendant may try to use D.P. to attack S.S.’s credibility at
trial. In response, the State denies that S.S. fabricated her claims against D.P., although the
State acknowledges that the charges against D.P. were dismissed, and the State has no
intention of bringing new charges against him.

{5} In response to Defendant’s demands for an interview, D.P., acting on the advice of
counsel, invoked his Fifth Amendment privilege against self-incrimination and refused to
talk with Defendant. Defendant attempted to overcome D.P.’s Fifth Amendment assertion
by asking the prosecutor to apply to the court for use immunity so that D.P. could testify
without fear of being prosecuted based on what he said at trial or during the interview. The
State refused to request immunity for D.P.

{6} Defendant applied to the district court for relief. Based on then-existing law, the

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district court properly concluded that it had no power to grant immunity unless the
prosecution applied for it. See Rule 5-116 NMRA (limiting immunity to application of the
prosecutor). Nonetheless, after the prosecution made clear it would not apply for immunity,
the district court advised the State that the court would dismiss the charges if the prosecution
did not apply for immunity within one week. Before the deadline passed, the State again
informed the court that it would not apply for immunity.

{7} The State appears to have concluded that D.P. had no valid Fifth Amendment right
because the charges against him had been dismissed and the likelihood of further charges
being lodged were “so remote as to be inconsequential.” Because D.P. was “no longer
exposed to any jeopardy from the events that formed the basis of the previous prosecution,”
the State regarded immunity as inappropriate. The district court disagreed, concluding that
D.P.’s Fifth Amendment privilege conflicted irrevocably with Defendant’s Sixth and
Fourteenth Amendment rights to confrontation and due process of law. Because the State
would not request immunity for D.P., the court dismissed the criminal case against
Defendant. The State appealed and the Court of Appeals reversed in a published opinion,
State v. Belanger, 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530. The Court determined
that the trial court's dismissal conflicted with State v. Sanchez, 98 N.M. 428, 432-33, 649
P.2d 496, 500-01 (Ct. App. 1982), and concluded that, except in cases of prosecutorial
misconduct, courts have “no power to . . . fashion witness use immunity under the guise of
due process.” Belanger, 2007-NMCA-143, ¶ 6 (internal quotation marks and citation
omitted). Defendant petitioned for review, and we granted certiorari. 2007-NMCERT-010,
143 N.M. 74, 172 P.3d 1286. We reverse.

STANDARD OF REVIEW

{8} This appeal implicates important constitutional rights, including the Fifth
Amendment right against self-incrimination, the Sixth Amendment rights to confront
witnesses and to receive compulsory process, and the Fourteenth Amendment right to due
process of law, including the right to a fair trial, and therefore our review is de novo. See
State v. Brown, 2006-NMSC-023, ¶ 8, 139 N.M. 466, 134 P.3d 753 (applying de novo
standard where “important constitutional rights” are implicated (citing State v. Attaway, 117
N.M. 141, 145, 870 P.2d 103, 107 (1994) (applying de novo standard to “threshold
constitutional issues”))).

DISCUSSION

Witness Immunity

{9} Defendant asserts that D.P.’s testimony is essential to his defense. He argues that
without a grant of use immunity to D.P., Defendant’s ability to confront his accuser and to
obtain compulsory process, protected by the Sixth Amendment to the United States
Constitution as well as Article II, Section 14 of the New Mexico Constitution, is
compromised. Without these rights, Defendant asserts, his broader right to a fair trial,

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guaranteed by the Fourteenth Amendment to the United States Constitution and by Article
II, Section 18 of the New Mexico Constitution, is imperiled. Use immunity would solve this
problem, according to Defendant, because it would require D.P. to testify, thus meeting
Defendant’s need, while protecting D.P.’s Fifth Amendment rights because nothing said by
D.P. could later be used against him. See Kastigar v. United States, 406 U.S. 441, 453
(1972) (holding that “immunity from use and derivative use is coextensive with the scope
of the privilege against self-incrimination, and therefore is sufficient to compel testimony
over a claim of the privilege”).

{10} The State, for its part, asserts that it had no obligation to apply for immunity for D.P.
and that it was not obliged to justify or explain its reason. In essence, the State takes the
position that the case must proceed to trial without D.P.’s testimony, regardless of what D.P.
may or may not have to say about S.S. and her credibility.

Use Immunity versus Transactional Immunity

{11} We first discuss the important difference between use immunity and transactional
immunity—a distinction that is critical to understanding the basis for our opinion, as well
as the shortcomings we perceive in some of our earlier opinions. Transactional immunity
involves a promise by prosecutors that a witness will not be prosecuted for crimes related
to the events about which the witness testifies. See Piccirillo v. New York, 400 U.S. 548, 569
(1971) (Brennan, J., dissenting). In contrast, under a grant of use immunity, the prosecution
promises only to refrain from using the testimony in any future prosecution, as well as any
evidence derived from the protected testimony. Kastigar, 406 U.S. at 453. Under use
immunity, the prosecution may still proceed with charges against the witness so long as it
does not use or rely on the witness’s testimony or its fruits. Transactional immunity, on the
other hand, affords the witness a much broader immunity related to the entire transaction and
not just the witness’s testimony.

{12} Transactional immunity is broader than the Fifth Amendment privilege. Id. Use
immunity, by contrast, is coextensive with the Fifth Amendment privilege. Id. With use
immunity, both the prosecution and the witness are left in essentially the same position as
if the witness had retained his Fifth Amendment privilege and never testified. The witness
is not exposed to criminal liability for testimony given, and the prosecution loses little with
respect to its ability to prosecute. All the State surrenders is the ability to use testimony
which it otherwise never would have had. See Sanchez, 98 N.M. at 433-34, 649 P.2d at 501-
02 (citing Kastigar, 406 U.S. 441, for proposition that use immunity “leaves the witness and
the government in substantially the same position as if the witness had claimed his privilege
in the absence of a grant of immunity”). The State, if it wishes to prosecute, retains the
ability to use other, independently obtained evidence such as material it already had, or
material it developed independently of the witness’s testimony. See United States v.
Quatermain, 613 F.2d 38, 40 (3d Cir. 1980); see also Kastigar, 406 U.S. at 460 (noting that
after a grant of use immunity, the prosecution has “the affirmative duty to prove that the
evidence it proposes to use is derived from a legitimate source wholly independent of the

4
compelled testimony”).

{13} Our older cases occasionally blurred the distinction between use immunity and
transactional immunity, and sometimes spoke in overly broad terms by concluding that,
absent a constitutional provision or statute, courts could not grant any kind of immunity
without prosecutorial consent. See State v. Cheadle, 101 N.M. 282, 286, 681 P.2d 708, 712
(1983); Apodaca v. Viramontes, 53 N.M. 514, 518, 212 P.2d 425, 427 (1949). More recent
New Mexico jurisprudence makes clear that only transactional immunity is a legislative
prerogative, because it amounts to a decision by the people to exclude an entire class of
individuals from application of the state’s criminal laws. See State v. Brown, 1998-NMSC-
037, ¶ 63, 126 N.M. 338, 969 P.2d 313 (referring to the “legislative power of amnesty”).
Granting use immunity, which is not a form of “amnesty,” is an inherent function of the
judiciary under New Mexico law and is governed by court rule. Id. ¶ 61 (“Therefore, to the
extent that use immunity serves to compel testimony in a judicial proceeding and serves to
establish an evidentiary safeguard to protect the right against self-incrimination, we conclude
that it is within our power of ‘superintending control over all inferior courts’ of New Mexico
to enact rules governing this type of [use] immunity.”).

The New Mexico Rule on Use Immunity

{14} Unlike the federal use immunity rule, which is rooted in Congressional legislation,
use immunity in New Mexico is governed by the Rules of Evidence, Rule 11-412 NMRA,
the Rules of Criminal Procedure, Rule 5-116, and to a limited extent by statute, NMSA 1978,
§ 31-6-15 (1979). The only applicable and extant statute, Section 31-6-15, applies only to
grand jury proceedings and not to testimony at trial. Brown, 1998-NMSC-037, ¶ 57; State
v. Summerall, 105 N.M. 82, 83, 728 P.2d 833, 834 (1986). Outside the grand jury context,
court rule, and not statute, governs a court’s grant of use immunity to witnesses. See Brown,
1998-NMSC-037, ¶ 57.

{15} Rule 11-412 of our Rules of Evidence provides that evidence obtained under an
immunity order, as well as any evidence derived from such evidence, may not be used
against the person protected by that order with the exception of a charge of perjury based on
false testimony. This is use immunity. Rule 5-116 of our Rules of Criminal Procedure
provides that the court may issue a written order of immunity “upon the written application
of the prosecuting attorney.” Our cases have interpreted this to mean that immunity is
available only upon application by the prosecutor. See Cheadle, 101 N.M. at 286-87, 681
P.2d at 712-13; State v. Baca, 1997-NMSC-045, ¶ 37, 124 N.M. 55, 946 P.2d 1066; Sanchez,
98 N.M. at 434, 649 P.2d at 502.

{16} Some older New Mexico opinions appear to have assumed, incorrectly, that the
immunity rules (as opposed to the statute) derived their authority from a legislative grant of
power to the courts. See, e.g., Viramontes, 53 N.M. at 517-18, 212 P.2d at 427; State v.
Thoreen, 91 N.M. 624, 627, 578 P.2d 325, 328 (Ct. App. 1978). However, more recent and
better reasoned authority makes clear that while transactional immunity is a legislative

5
prerogative to be defined by statute, the grant of use immunity is a power which “inhere[s]
in the judiciary.” Brown, 1998-NMSC-037, ¶ 60. In the case before this Court, we consider
not transactional immunity, but use immunity, which this Court defines in the exercise of its
inherent judicial authority. Until today, this Court has limited use immunity to situations
initiated by the “application of the prosecuting attorney.” Id. ¶ 64.

{17} This Court’s inherent rule-making power permits us to create rules of criminal
procedure, evidence and other matters that fall within the realm of pleading, practice and
procedure. See generally Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 310, 551 P.2d
1354, 1357 (1976) (holding that rules governing testimonial privileges are solely within the
court’s power); State ex rel. Anaya v. McBride, 88 N.M. 244, 246-47, 539 P.2d 1006, 1008-
09 (1975) (stating that the quo warranto procedural requirement is beyond the power of the
legislature). More recent authority suggests that although the Court has “ultimate rule-
making authority,” that power is not necessarily exclusive, and may co-exist with
harmonious legislative enactments. See Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-
NMSC-032, ¶¶ 5-9, 138 N.M. 398, 120 P.3d 820; Maples v. State, 110 N.M. 34, 39, 791
P.2d 788, 793 (1990) (Montgomery, J., dissenting). This power over procedural and
evidentiary issues ultimately stems from the constitutional grant to this Court of
“superintending control over all inferior courts.” N.M. Const. art. VI, § 3; see also Brown,
1998-NMSC-037, ¶ 61 (same).

{18} The evolution of the criminal procedure rule on immunity, Rule 5-116, demonstrates
the judiciary’s authority to change it. In fact, this Court has frequently exercised its inherent
rule-making power to alter the rules pertaining to immunity. For example, Rule 58, an earlier
version of criminal procedure Rule 5-116, provided for transactional immunity. See Rule
5-116, Committee commentary; Sanchez, 98 N.M. at 433, 649 P.2d at 501. Without any
authorizing legislation, the rule required the State to “forego the prosecution of the person
for criminal conduct about which he is questioned and testifies.” Rule 5-116, Compiler’s
Annotations (citing Campos v. State, 91 N.M. 745, 580 P.2d 966 (1978)).

{19} The Committee, exercising the power of this Court, amended the rule in 1979 to
remove the reference to transactional immunity, and it has been a “use immunity” rule ever
since. Later, the Committee, again acting under the authority of this Court and the Court of
Appeals opinion in Sanchez, amended the commentary to specify that only the prosecution
could apply for use immunity. See Rule 5-116, Committee commentary. The commentary
had earlier posited that either the prosecution or the defense could apply for immunity. Id.

{20} Less than three months before the Court of Appeals ruling in Sanchez, the
Committee commentary asserted that courts could unilaterally grant witness immunity, an
assertion that in some ways resembles the rule we announce today. Rule 58 Final Draft,
Committee commentary, 4/1982. The commentary noted that “in order to assure
fundamental fairness,” a defendant “may be entitled to a witness immunity order under the
Fifth and Sixth Amendments of the United States Constitution.” Id. This assertion followed
a similar claim, in dictum, by the Court of Appeals prior to Sanchez, in State v. McGee, that

6
“[a court order] of use immunity may have been an appropriate way of accommodating the
competing interests of the State and the defendant.” 95 N.M. 317, 320, 621 P.2d 1129, 1133
(Ct. App. 1980).

{21} What we learn from this history is that use immunity in New Mexico courts has not
remained static. It has evolved over the years as an exercise of inherent judicial authority
over our state courts and, notably, in the absence of any contrary legislative expression
pertaining to trials. We also understand that both courts and our rules committees have
considered and discussed a rule similar to the one we announce today which broadens the
ability of either party to request use immunity and compelled testimony for a witness. That
approach was ultimately rejected in favor of the federal approach, which, as we will soon
discuss, is not at all parallel to our own state rules.

The Federal Rule on Use Immunity

{22} Congress enacted the federal “use immunity” statute, 18 U.S.C. §§ 6001-6005, in
1970, and the United States Supreme Court upheld its constitutionality two years later, in
Kastigar, 406 U.S. 441. It offers a study in contrast with the New Mexico rule. Unlike the
New Mexico rule, the federal rule on witness immunity is purely statutory—a grant of
authority from Congress to prosecutors. With the exception of Government of Virgin Islands
v. Smith, 615 F.2d 964 (3d Cir. 1980), which located an inherent judicial power outside the
statute, every federal court of appeals to squarely consider the issue has held that federal
courts may not grant defense-witness use immunity—certainly not under the federal statute,
and not outside the statute’s reach either, although at least one case recognizes the
hypothetical possibility of such an extra-statute grant. See, e.g., United States v. Turkish,
623 F.2d 769, 777 (2d Cir. 1980).

{23} The federal statute provides that federal district courts “shall issue” an order
providing for use immunity “upon the request of the United States attorney.” 18 U.S.C. §
6003(a). As the majority of courts have interpreted the statute, federal district courts play
little more than a ministerial role in administering use immunity under 18 U.S.C. §§ 6001-
6005. See, e.g., Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir. 1975) (“The function
of the district court is limited to determining whether the government's request for immunity
complies with the statutory procedure.”). There is one widely recognized exception.

{24} Where a court finds prosecutorial misconduct, it may force the prosecution to grant
immunity or dismiss the case. New Mexico has recognized this prosecutorial misconduct
exception as it applies to our own rules, and our courts may step in and grant witness
immunity independent of the prosecution where prosecutors “deliberately intend to disrupt
the fact-finding process.” State v. Crislip, 110 N.M. 412, 415, 796 P.2d 1108, 1111 (Ct.
App. 1990), overruled on other grounds by Santillanes v. State, 115 N.M. 215, 225 & n.7,
849 P.2d 358, 368 & n.7 (1993); see also Baca, 1997-NMSC-045, ¶ 39 (“barring a clear
showing of prosecutorial misconduct, use immunity can only be sought by the prosecution”).

7
{25} This exception is rarely applied, however, because prosecutorial misconduct of this
sort is so difficult for defendants to prove. See State v. Velasquez, 99 N.M. 109, 112, 654
P.2d 562 (Ct. App. 1982) (noting that “the defendant has a difficult burden to show
prejudice” in making out a case of prosecutorial misconduct in the grand jury context).
Furthermore, some federal courts have held that under the federal immunity statute, they lack
the power even to review prosecutorial immunity decisions about grants of immunity. See,
e.g., United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978). We find no instance in
New Mexico where a court has granted use immunity on its own because of prosecutorial
misconduct.

{26} The district court in this case found no prosecutorial misconduct. We disturb neither
that finding nor our case law as to the prosecutorial misconduct exception. We highlight it
only to show that as a practical matter it leaves little, if any, role for courts in the federal
system, and under the majority rule in the state systems.

{27} Given that the federal rule is legislatively based, it is not surprising that an
overwhelming majority of federal courts have held that courts have no inherent power to
grant use immunity to a defense witness without the consent of the prosecution and in the
absence of prosecutorial misconduct. See, e.g., United States v. Lenz, 616 F.2d 960, 962-63
(6th Cir. 1980) (“While use immunity for defense witnesses may well be desirable, its
proponents must address their arguments to Congress, not the courts.” (Citation omitted.));
United States v. Smith, 542 F.2d 711, 715 (7th Cir. 1976); United States v. Alessio, 528 F.2d
1079, 1081 (9th Cir. 1976); Thompson, 516 F.2d at 988.

{28} Although it is clear that federal courts have rejected inherent judicial authority to
grant defense witness immunity, the United States Supreme Court, as well as several federal
appeals courts, have recognized inherent judicial power to grant immunity in other contexts,
in order to protect constitutional rights. See Simmons v. United States, 390 U.S. 377, 394
(1968) (finding it “intolerable that one constitutional right should have to be surrendered in
order to assert another,” and holding that testimony made by a defendant in a Fourth
Amendment suppression hearing cannot be used at trial unless he fails to object); In re
Grand Jury Investigation, 587 F.2d 589, 597 (3d Cir. 1978) (recognizing use immunity for
testimony predicate to Speech and Debate Clause).

{29} State courts also appear to have uniformly rejected judicially imposed defense-
witness immunity in the absence of prosecutorial misconduct. See, e.g., State v. Jeffers, 661
P.2d 1105, 1125 (Ariz. 1983) (in banc); Harding v. People, 708 P.2d 1354, 1358 (Colo.
1985) (en banc); State v. Roberts, 574 A.2d 1248, 1251 (Vt. 1990). Some states recognize
the hypothetical possibility that a case could arise in which judicially imposed immunity
would be necessary. See, e.g., People v. Hunter, 782 P.2d 608, 616 (Cal. 1989).

{30} Over the years, periodic expressions of support have surfaced for judicially ordered
use immunity. See, e.g., United States v. Gaither, 539 F.2d 753, 754-55 (D.C. Cir. 1976)
(Bazelon, C. J., concurring in denial of rehearing en banc); United States v. Leonard, 494

8
F.2d 955, 985 n.79 (D.C. Cir. 1974) (Bazelon, C. J., concurring in part and dissenting in
part); United States v. La Duca, 447 F. Supp. 779, 786 (D.N.J. 1978) (“The availability of
use immunity can protect the government's interest in potential future prosecution of a
witness while also satisfying the interest of the criminal defendant in the presentation of
testimony which can exculpate him.”). The concept has also garnered some enthusiastic
support in academia. See generally Peter Westen, The Compulsory Process Clause, 73
Mich. L. Rev. 71, 166-70 (1974); Barbara A. Reeves, Notes, A Re-examination of Defense
Witness Immunity: A New Use for Kastigar, 10 Harv. J. Legis. 74 (1972); Notes, The Sixth
Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv. L. Rev.
1266 (1978); Note, Separation of Powers and Defense Witness Immunity, 66 Geo. L.J., 51
(1977); Leonard N. Sosnov, Separation of Powers Shell Game: The Federal Witness
Immunity Act, 73 Temp. L. Rev. 171 (2000).

The New Mexico Rule-Making Authority Differs from the Federal Model

{31} Under the federal Constitution, Congress exercises considerable control over rules
and procedure of the federal courts, and where the judicial branch does have its own power
to promulgate rules, it is largely on authority delegated by Congress. See Mistretta v. United
States, 488 U.S. 361, 385-88 (1989) (explaining Congress’s power to regulate court
procedure, or to delegate that power). By contrast, the New Mexico Constitution has always
afforded the judiciary virtually independent control over inferior tribunals, as well as court
rules. Under the New Mexico Constitution, the New Mexico Legislature has no power akin
to the constitutionally mandated power of Congress to “constitute Tribunals inferior to the
supreme Court,” U.S. Const. art. I, § 8, cl. 9. This power of Congress to create the federal
court system, supplemented by the authority granted by the Necessary and Proper Clause,
U.S. Const. art. I, § 8, cl. 18, has been understood to give Congress the power “to prescribe
rules of evidence and standards of proof in the federal courts.” Vance v. Terrazas, 444 U.S.
252, 265 (1980); see also id. at 266 (noting that such power is “undoubted and has been
frequently noted and sustained”); Hanna v. Plumer, 380 U.S. 460, 472 (1965) (Congress has
“power to make rules governing the practice and pleading” in federal courts). By contrast,
the New Mexico Constitution itself creates the courts inferior to this Court, while leaving
the Legislature residual power to create “other courts inferior to the district courts as may
be established by law from time to time in any district, county or municipality of the state.”
N.M. Const. art. VI, § 1; see also Stout v. City of Clovis, 37 N.M. 30, 33, 16 P.2d 936, 938
(1932) (same).

{32} It is clear, then, that this Court exerts an authority over its own courts, and therefore
its own rules, that federal courts lack. But even if that were not true, we could comfortably
conclude that the federal immunity rule is quite unlike our own rule. The federal immunity
statute, which is the first and last word on federal immunity, explicitly grants the immunity
power to prosecutors. Our statute does not, and does not even apply beyond the grand jury.
The portion of our immunity law which does specify prosecutorial authority is Rule 5-116
of our Rules Criminal Procedure, which, as we have already noted, is within our inherent
authority to change. Albuquerque Rape Crisis Ctr., 2005-NMSC-032, ¶ 5. We have

9
amended rules in the past, as well as jury instructions, by court opinion. See State v. Pieri,
No. 31,119, slip op. at 25 (N.M. Sup. Ct. April 23, 2009); State v. Balderama, 2004-NMSC-
008, ¶ 38 n.4, 135 N.M. 329, 88 P.3d 845 (amending a portion of the Uniform Jury
Instructions).

{33} Our conclusion that this Court controls use immunity rules flows naturally from the
well-accepted proposition that New Mexico courts control issues of evidence and
testimony—a proposition which is far less true in the federal system. In granting use
immunity, courts are acting upon their inherent power to control their courtroom and to
establish procedural rules. See State ex rel. Bliss v. Greenwood, 63 N.M. 156, 161-62, 315
P.2d 223, 227 (1957) (noting that courts have inherent power to hold non-compliant
witnesses in contempt); Ammerman, 89 N.M. at 309-12, 551 P.2d at 1356-59 (stating that
courts have power over certain privileges as matters of evidence). A long line of cases in
this state support the proposition that the control of testimony is a judicial prerogative. See
Brown, 1998-NMSC-037, ¶ 61; Greenwood, 63 N.M. at 162, 315 P.2d at 227 (noting and
discussing the contempt power of courts); Albuquerque Rape Crisis Ctr., 2005-NMSC-032,
¶ 34 (Bosson, C.J., dissenting) (“The decision to allow someone not to give testimony, and
the balancing of policy considerations implicit in such a decision, goes to the heart of
judicial authority.”); Rule 11-501 NMRA (stating that “no person has a privilege to . . .
refuse to be a witness . . . [or] refuse to disclose any matter” except as provided by
constitution or court rules).

{34} Some of our cases even suggest that the control of court rules on evidence and
procedure is an exclusive judicial power, and that the Legislature has no role. See
Ammerman, 89 N.M. at 312, 551 P.2d at 1359. While we have recently tempered our
reliance on this theory of judicial exclusivity, see Albuquerque Rape Crisis Ctr., 2005-
NMSC-032, ¶ 5, this Court has always been understood to govern its own decisions on
procedure, pleading and other core judicial functions. See Michael B. Browde & M.E.
Occhialino, Separation of Powers and the Judicial Rule-Making Power in New Mexico: The
Need for Prudential Constraints, 15 N.M. L. Rev. 407 (1985) (charting an increasingly
court-centered power over rules of procedure and pleading, but also noting, at 427, that New
Mexico had, at least until the 1930's, a “long tradition of shared responsibility for rule-
making”).

{35} In conclusion, New Mexico use immunity law, unlike its federal counterpart, is a
creature of the courts, and therefore amenable to judicial change. By virtue of our decisional
law, as well as this Court’s superintending control, we have more latitude than those courts
which have addressed this issue in other jurisdictions. And at the risk of overstating the
obvious, our Legislature has not expressed any views, contrary or otherwise, on use
immunity at trial and on the role of the prosecutor. Therefore, in exercising our “ultimate
rule-making authority” over procedure and pleading, Albuquerque Rape Crisis Ctr., 2005-
NMSC-032, ¶ 5, we have no doubt that this Court has the authority to permit district courts
to grant use immunity in limited circumstances with or without the concurrence of the
prosecutor.

10
{36} To the extent our precedents hold differently, they are no longer persuasive for all
the reasons discussed herein, and we overrule them on that point of law. For example, in
both Cheadle, 101 N.M. at 286-87, 681 P.2d at 712-13, and Baca, 1997-NMSC-045, ¶ 37,
we did not discuss the important distinction between federal law and our own jurisprudence,
or for that matter the vital difference between use immunity and testimonial immunity.
Instead, both cases appeared to conclude, based on the federal model, and without much
analysis or discussion, that prosecutorial control over the immunity process could not be
altered absent constitutional or statutory authority. As we have explained, our prior
adherence to the federal paradigm and its grant of prosecutorial control over use immunity
no longer withstands critical analysis. We overrule both cases with respect to that
conclusion, holding that our courts do have the authority to grant a witness use immunity
under certain limited circumstances.1

{37} Ironically, the Court of Appeals opinion in Sanchez, 98 N.M. 428, 649 P.2d 496, that
preceded Cheadle, 101 N.M. 282, 681 P.2d 708, and Baca, 1997-NMSC-045, is in accord
with today’s opinion, to the extent that it implicitly recognized our judiciary’s independent
authority to alter immunity rules, a power not granted to federal courts. However, the
Sanchez Court determined that this distinction with federal law “does not warrant adoption
here of a different result” from that followed by federal jurisdictions and continued to honor
the prosecutor’s control over the immunity process. Sanchez, 98 N.M. at 433, 649 P.2d at
501. Today we come to a different conclusion about whether to follow federal practice, but
we draw comfort from the Sanchez Court’s earlier recognition that ultimately the decision
to follow federal authority is ours alone to make. Accordingly, we overrule Sanchez as to
its ultimate conclusion. We also hereby amend Rule 5-116 to delete the words “upon the
written application of the prosecuting attorney,” and refer the matter to the Rules of
Criminal Procedure Committee for further review.2

{38} In order to guide district courts seeking to determine whether court-granted immunity
is appropriate, we establish the following overview for such determinations, which also
incorporates the applicable elements of Rule 5-116 and Rule 11-412. Before granting use
immunity to a defense witness over the opposition of the prosecution, district courts should
perform a balancing test which places the initial burden on the accused. The defendant must

1
Our research indicates that Sanchez, Cheadle or Baca, and sometimes all three, have
been cited with some frequency for the proposition that New Mexico courts have no
independent authority to grant use immunity to witnesses. See McGee v. Crist, 739 F.2d
505, 508-09 (10th Cir. 1984); State v. Saiz, 2008-NMSC-048, ¶¶ 50-51, 144 N.M. 663, 191
P.3d 521; State v. Saavedra, 103 N.M. 282, 286, 705 P.2d 1133, 1137 (1985); Crislip, 110
N.M. at 415, 796 P.2d at 1111.
2
This Court generally carries out the specific wording of rule changes by way of rules
committees, and we can see no reason to depart from that custom here. We therefore leave
it to the Committee to determine the particulars of how Rule 5-116 should be worded.

11
show that the proffered testimony is admissible, relevant and material to the defense and that
without it, his or her ability to fairly present a defense will suffer to a significant degree. If
the defendant meets this initial burden, the district court must then balance the defendant’s
need for the testimony against the government’s interest in opposing immunity. A court
cannot determine whether a judicial grant of use immunity is necessary “without assessing
the implications upon the Executive Branch.” Turkish, 623 F.2d at 776. In opposing
immunity, the State must demonstrate a persuasive reason that immunity would harm a
significant governmental interest. If the State fails to meet this burden, and the defendant
has already met his burden, the court may then exercise its informed discretion to grant use
immunity which our appellate courts would review for abuse of discretion.

Application to the Present Case

{39} Because the present case came to us before it went to trial, the record is
underdeveloped. But at least two important aspects of the case appear to be clear enough.
The first is that the State’s explanation of why it refused to grant D.P. use immunity is
unpersuasive and practically non-existent. The second is that Defendant’s ability to present
an effective defense arguably may suffer if he is unable at least to explore D.P.’s testimony.
We cannot rule out at this point that D.P.’s testimony may be material to Defendant’s theory
of the case. We leave it to the district court on remand to pursue this issue at greater length.
We do not restrict the court’s ability on remand to decide anew whether use immunity is
ultimately essential to Defendant in this particular case and, if so, whether to grant use
immunity to D.P. All we decide, at this juncture, is that the district court has the power to
consider the grant of use immunity under the circumstances. Because of the lack of a
developed record, we also cannot say at this juncture which of D.P.’s constitutional rights,
if any, may be imperiled. We leave it to the district court to consider, in light of further fact-
finding, whether it is the Sixth Amendment rights of confrontation or compulsory process,
or simply the broader Fourteenth Amendment right to a fair trial. We further note that
immunity for the purposes of an in-camera interview is not necessarily the same as immunity
for purposes of trial. That is, a district court’s decision to grant immunity for the purpose of
understanding what the witness’s testimony at trial will be, does not bind that court to a grant
of immunity at trial. The two decisions are separate. Immunity for one purpose does not
equate to immunity for the other.

{40} As for the State’s refusal to grant immunity, the prosecution asserted that it had no
intent to charge D.P. but, nonetheless, refused to apply for immunity. The State declined,
not because prosecutors had any intention of pursuing further charges, or because they
believed a case might later arise against D.P., or because they believed the general interests
of justice would be advanced. The State appears to have refused to grant immunity simply
because it did not want to and opposed anyone deciding differently.

{41} The prosecution’s stated rationale was twofold. First, the State asserted that D.P. had
no valid Fifth Amendment right because the case against D.P. had already been adjudicated
and the State had no plans to pursue further charges. Second, the prosecution asserted “the

12
general principle” that the State should not be “forced to grant immunity every time the
defense request[s] it.” The State invoked the possibility of a “flood gate” opening to “every
Tom, Dick and Harry coming into this system and saying, well, you need to grant me
immunity.”

{42} The first claim is as circular as it is unpersuasive. If the prosecutor truly had no plans
to prosecute, and could foresee no set of facts in which Defendant might be prosecuted, then
the State stands to lose very little by granting D.P. use immunity.

{43} To successfully assert a Fifth Amendment privilege, a witness must have “reasonable
cause to apprehend danger from a direct answer” of a question. Hoffman v. United States,
341 U.S. 479, 486 (1951). Further, the danger of prosecution must be “real and
appreciable.” Brown v. Walker, 161 U.S. 591, 599 (1896). But the Fifth Amendment right
against self-incrimination does not vanish merely because the prosecution claims it will not
prosecute. See United States v. Jones, 703 F.2d 473, 478 (10th Cir. 1983) (“Once the court
determines that the answers requested would tend to incriminate the witness, it should not
attempt to speculate whether the witness will in fact be prosecuted.”). It is broadly
recognized that, barring a number of well-defined exceptions, the failure to invoke the Fifth
Amendment waives its protections. See United States v. Monia, 317 U.S. 424, 427 (1943).
The fact that a prosecutor has promised not to prosecute would not change this analysis,
possibly barring some sort of contractual agreement the likes of which are absent in this
case. Furthermore, it is clear that there are many charges that could reasonably result from
revelations made by D.P. in his testimony, and the district court so found.

{44} The second basis for the prosecutor’s refusal reveals the hazards of giving the State
sole and essentially unchecked control over immunity determinations. The assertion that use
immunity should not be granted in D.P.’s case because of “the general principle” that it
would encourage others to seek immunity is no justification at all in Defendant’s particular
case. Carried to its logical conclusion, it would mean there is essentially never an
appropriate time for use immunity. This highlights the fundamental problem with the current
rule: it puts the prosecution in control of critical constitutional rights of the accused, while
excluding the moderating influence of an impartial judiciary.

{45} It is true that prosecutors have a duty to serve the broad interests of justice by
ensuring the integrity and fairness of the criminal justice system, and not just tally up
convictions. See State v. Cooper, 2000-NMCA-041, ¶ 15, 129 N.M. 172, 3 P.3d 149 (“The
sole duty of a prosecutor is to see that justice is done.”); State v. Brule, 1997-NMCA-073,
¶ 18, 123 N.M. 611, 943 P.2d 1064 (“The prosecutorial role is to pursue a charging pattern
that reconciles the community interest in proper enforcement of the law and the interest,
shared by the community and the defendant, in fairness to the defendant.”), rev’d on other
grounds, 1999-NMSC-026, ¶ 15, 127 N.M. 368, 981 P.2d 782. But prosecutors are also, by
definition, partisan combatants in our adversarial system. It has always been the role of
courts in this system to mediate this kind of conflict between the prosecution and the
defense.

13
{46} The State’s grounds for refusing immunity here are notably weaker than prior
justifications in our other immunity cases. In Sanchez, 98 N.M. at 431, 649 P.2d at 499, the
defendant, an alleged car thief, proposed to put on the stand a man who would testify that
it was he, the witness, and not the defendant who committed the crime. The district court
refused to grant use immunity, and the Court of Appeals affirmed. Unlike the State in the
present case, prosecutors in Sanchez had a clear and undeniable desire to prosecute the
proposed defense witness for the underlying crime if the jury believed his testimony. In the
present case, the witness is not confessing to any part in the crime for which Defendant is
charged, and the State claims no interest in prosecuting the witness even for perjury.

{47} In Cheadle, 101 N.M. at 286-87, 681 P.2d at 712-13, a murder defendant proposed
to put on the stand a witness who would testify that the accused was with him, the witness,
the night of the murders. The district court refused to grant immunity to the proposed
witness, and this Court affirmed. Id. at 287, 681 P.2d at 713. The State’s reasons for
rejecting immunity were more compelling than in the present case. If the defense witness
testified as proffered, the State would have a legitimate interest in prosecuting the witness
for harboring a fugitive.3

Foundations of the Majority Immunity Rule

{48} In coming to the decision we announce today, we are not unmindful of the policy
concerns raised in other forums against allowing courts to grant immunity without the
concurrence of the prosecution. We address the principal concerns and our reasons for
taking a different view. Underlying all of these concerns is a fear about the judiciary
encroaching on the authority of the legislative and executive branches.

Separation of Powers

{49} The fundamental concern about giving courts unilateral authority to grant use
immunity is that doing so invades the province of either the legislative branch, the executive
branch, or both. See, e.g., United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990).
The roots of these fears run deep. As the United States Supreme Court noted in detail in
Kastigar, 406 U.S. at 443, immunity statutes are a tradition spanning more than two
centuries of Anglo-American jurisprudence. Such statutes generally grant the power of
immunity to prosecutors, not to courts.

3
In noting the relative strength of the defense witness’s arguments in these cases, we
do not purport to pre-determine the outcome of any future cases with facts similar to Sanchez
or Cheadle. Because of the fact-intensive and case-specific analysis which the district court
must carry out in determining whether to grant defense witness immunity, it is of course
impossible to anticipate how the principles announced today will play out in any given set
of facts.

14
{50} As we have previously discussed, in the instance of transactional immunity we agree
that separation-of-powers concerns resonate deeply, because transactional immunity amounts
to a decision not to prosecute at all. The decision to grant this broad and sweeping immunity
is one which courts are not well-suited to make. See Brown, 1998-NMSC-037, ¶ 59.
Furthermore, the determination of whom and when to prosecute, while not entirely exempt
from judicial review, lies nonetheless at the heart of the prosecutor’s powers. See State v.
Ogden, 118 N.M. 234, 240-41, 880 P.2d 845, 851-52 (1994); see also Boone v. Kentucky,
72 Fed. Appx. 306, 307 (6th Cir. 2003) (noting that absolute immunity extends to a
prosecutor’s decision “on whether to prosecute a case”).

{51} There are good reasons for prosecutors to decide unilaterally whom to prosecute, as
well as when and when not to prosecute. Many courts, federal and state, have amply
expressed these reasons. See, e.g., United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965);
Application of Hassan v. Magistrates Court of New York, 20 Misc. 2d 509 513-14 (1959);
Murphy v. Sumners, 54 Tex. Crim. 369, 370 (1908).

{52} According to the federal rule, courts are essentially powerless to consider the
constitutional rights of a defendant in the case of immunity for defense witnesses. See, e.g.,
Turkish, 623 F.2d at 773-74. Although this is the majority position, it is nonetheless an
extreme one. It is rare in criminal jurisprudence that a court is completely foreclosed from
enforcing or protecting the constitutional rights of the accused. The anomaly is particularly
striking in the instance of use immunity, which is much more akin to a classic judicial
function than is the granting of transactional immunity.

{53} We fully acknowledge that the imposition of use immunity, though less burdensome
to prosecutors than transactional immunity, may still pose significant challenges to the
prosecution. District courts considering whether to grant use immunity should seriously
consider these difficulties. Under traditionally recognized use immunity rules, the
government retains a “heavy burden” to show that its case against an immunized witness is
not derived from the immunized testimony. Kastigar, 406 U.S. at 461. Furthermore, a
prosecutor may feel compelled to curtail cross-examination of a witness granted use
immunity, in order to limit the potential universe of testimony that the witness can later
claim was used in a subsequent prosecution. We recognize that these concerns are real, and
that the burden on prosecutors even for use immunity can be substantial. See State v.
Vallejos, 118 N.M. 572, 577, 883 P.2d 1269, 1274 (1994) (stating that in order to carry its
burden, the State must present evidence, not just argument, and must make a preponderance
showing). We have previously noted that when the State grants use immunity, it runs a
“grave risk” that the future prosecution of an immunized witness for past crimes “may, as
a practical matter, be impossible.” Id. at 580, 883 P.2d at 1277 (internal quotation marks and
citation omitted); see also United States v. North, 910 F.2d 843, 862 (noting that, when a
witness is granted use immunity, the government “is taking a great chance that the witness
cannot constitutionally be indicted or prosecuted”), opinion withdrawn and superseded in
part on reh’g, 920 F.2d 940 (D.C. Cir. 1990).

15
{54} However, we also recognize that prosecutors deal regularly with use immunity rules,
and are more than capable of successful prosecutions despite them. See, e.g., State v. Olivas,
1998-NMCA-024, ¶ 7, 124 N.M. 716, 954 P.2d 1193 (rejecting defendant’s argument that
prosecution used immunized statements in violation of Kastigar). This Court has established
certain guidelines for separating immunized testimony from other evidence, see Vallejos,
118 N.M. at 577-78, 883 P.2d at 1274-75, and clear rules are also available elsewhere. See
U.S. Attorneys’ Manual, U.S. Department of Justice, Criminal Resource Manual § 726,
Steps to Avoid Taint (1997), available at
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/ title9/crm00726.htm. We are
confident that our state’s district attorneys can and will produce similar guidelines for
defense witnesses. Under the balancing test, we announce today, prosecutors have ample
opportunity to argue to district courts that the burdens of use immunity would so hinder their
ability to prosecute that they outweigh whatever interest the defendant may have in obtaining
witness immunity. Ultimately, the trial court will have to decide on a case-by-case basis.

Clogging the Courts

{55} In its briefing before this Court, as well as its argument to the district court, the State
justified its refusal to grant immunity, in part, on fears that granting immunity would open
the “floodgate” to defense witnesses demanding immunity for their testimony. As a result
of today’s opinion, district courts may see an increase in requests for defense witness
immunity, but a desire for efficiency is no reason to withhold testimony which could provide
essential constitutional protection to defendants. A desire for judicial expediency provides
no excuse to short-change a defendant in his quest for constitutional protection. See United
States v. McIver, 688 F.2d 726, 731 (11th Cir. 1982) (noting the “futility of attempting to
substitute efficiency for constitutional requirements of due process”). Furthermore, we have
long noted that district courts have supervisory control over the proceedings before them,
and are fully capable of quickly dispatching meritless arguments. See Pizza Hut of Santa Fe,
Inc. v. Branch, 89 N.M. 325, 327, 552 P.2d 227, 229 (Ct. App. 1976) (“[W]e have held that
trial courts have supervisory control over their dockets and inherent power to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases.”). With these
well-established principles, courts will be able to prevent needless and time-consuming mini-
trials over the issue of witness immunity.

“Immunity Baths”

{56} Grants of immunity, whether made by prosecutors or by the courts, are inherently
subject to abuse by witnesses. A witness may lie, or alter his testimony, in order to receive
immunity. In the case of defense witness immunity, the risk is in some senses two-fold. For
example, a friend of the accused may testify falsely under an immunity grant, stating that he,
and not the accused, is guilty of the crime. Confused thereby, the jury may be unable to
decide to convict beyond a reasonable doubt. With the grant of immunity, the prosecution
may be left without a case, and the real perpetrator, either one in this hypothetical scenario,
is never held accountable. Some courts have described this so-called “immunity bath”

16
technique as a basis for not permitting judicially granted immunity. See, e.g., In re Kilgo,
484 F.2d 1215, 1222 (4th Cir. 1973).

{57} We recognize the concern is legitimate. However, where the issue is use immunity
alone, and not transactional immunity, the concern largely, though not entirely, diminishes.
The incentive for a witness to lie in exchange for mere use immunity is small. In the case
of transactional immunity, the lying witness can secure for himself freedom from
prosecution for a series of events in which he may have been involved. With use immunity,
such a witness receives virtually nothing in return for his lie. The prosecution does not
promise to refrain from prosecuting for the events described, but only for the testimony
itself. Furthermore, use immunity does not protect against prosecution for perjury. See Rule
11-412 (stating that evidence or testimony obtained after a grant of use immunity may not
be used against a person compelled to testify, “except a prosecution for perjury committed
in the course of the testimony”).

{58} And yet the incentive for prosecutors to grant defense witness immunity is small.
Given the certainty that such testimony cannot help a prosecutor’s case, it is not surprising
that prosecutors grant immunity to defense witnesses only sparingly, if at all. The United
States Department of Justice as a matter of policy mandates that prosecutors will not grant
immunity to defense witnesses “except in extraordinary circumstances where the defendant
plainly would be deprived of a fair trial.” U. S. Attorneys’ Manual, available at
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/23mcrm.htm#9-23.214.
We found no cases mentioning such a grant, while immunity grants to State witnesses are
legion. See, e.g., Vallejos, 118 N.M. at 574, 883 P.2d at 1271; Brown, 1998-NMSC-037, ¶¶
5-10, State v. Lunn, 82 N.M. 526, 529, 484 P.2d 368, 371 (Ct. App. 1971) (discussing Dutton
v. Evans, 400 U.S. 74 (1970)).

{59} While the justifications for vesting immunity power solely in the prosecution are
strong, particularly in the federal system, they are weaker under New Mexico law. As we
have discussed, the policy grounds for sole prosecutorial authority on this issue are
persuasive for transactional immunity, but much less so for use immunity—a distinction
which our case law in the past has failed to fully make. In asking our district courts to
balance the various needs and rights with respect to use immunity, we are merely asking
them to do what they do with many issues in nearly every phase of a criminal trial: mediate
between the defendant and the State. This is the kind of decision district courts are well-
suited to make. The constitutional stakes are high enough in the instance of use immunity
that the court should have some role. In short, we conclude that while the reasons for
unfettered prosecutorial control over use immunity are in some instances strong, they do not
overcome the need for judicial intervention in every case.

CONCLUSION

{60} We reverse the Court of Appeals and remand to the district court to apply the new
rule and balancing test we announce today. Our holding in this case applies prospectively

17
and to all pending cases which have not yet gone to trial as of the date of this Opinion. See
Pieri, No. 31,119, slip op. at 25-26.

{61} IT IS SO ORDERED.

____________________________________
RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

Topic Index for State v. Belanger, No. 30, 654

CT Constitutional Law
CT-NM New Mexico Constitution, General
CT-SP Separation of Powers
CT-RF Right to Confrontation
CT-SL Self-incrimination
CT-DP Due Process
CT-WI Witness immunity

CU Courts
CU-IP Inherent powers

CA Criminal Procedure
CA-IM Immunity
CA-RA Right Against Self-incrimination
CA-RT Right to Confrontation
CA-DU Due Process

EV Evidence
EV-WI Witness Immunity

18