dissenting.
In factual justification for societal incarceration of a human being for eight months and ten days, the evidentiary case panorama unfolded.
As the prosecutorial evidence, Allan J. Franklin testified to having been an eye-' witness, identified the car that struck the dog as cream-colored with a tannish-like roof, and identified the defendant as the *761driver. Joseph Joslyn, the other prosecution witness, identified the car as the defendant’s — a yellowish, cream-colored vehicle with a black roof.
In a post-trial affidavit, Domenick Ritten-house, age 15, stated:
“7. I then talked to Joe Joslyn several days after the dog was killed and asked him if they had found out anything about the dog and he said that they had found out who had killed their dog. Joe said the guy swerved to hit him and A.J. Franklin and they jumped off the road with their bikes and the guy hit their dog. I did not believe this story because he had told me on the phone after the dog was hit he didn’t know who did it. “8. On one other occasion just prior to the Court date, Joe Joslyn called me and said that he had just spoken with A.J. Franklin, who was also an acquaintance of mine and A.J. Franklin’s Dad told them what to say in Court, because he wanted to get the person that they were blaming for running over the dog.”
Joshua Rittenhouse, age 14, also stated by affidavit:
“4. That your Affiant was a neighbor and personal friend of A.J. Franklin, who was involved in the case concerning the dog of Joslyn’s that was killed.
“5. I overheard A.J. Franklin telling one of his friends on the school bus that he saw a blue car going by fast on Cole Creek Road and that Joe Joslyn called him just after that and said, Did you see a blue car go down the road because it hit my dog.
“6. I was sitting in the seat across from A.J. Franklin when this conversation took place and I was able to overhear the conversation without any trouble.”.
It does not take any particular brilliance to tell that someone was lying, and particularly so since the defendant had the trial testimony of a third party that his cream-colored car had not been operational for about eight months before the incident occurred.
The majority opinion concedes that the new evidence tended to show that the prosecution’s eyewitness gave false identification testimony — that the only witness who claimed to see the defendant commit the crime was not present at the scene of the crime. I agree with the majority that this type of new evidence is a ground upon which a new trial may be granted. Yet, the majority affirm the defendant’s conviction because the defendant failed to meet his burden of proof that his failure to discover the new evidence was not due to lack of diligence. I concede that the majority accurately express the correct legal standards under Rule 34, W.R.Cr.P., but I strongly disagree with the majority’s application of that standard to deny the defendant a curative opportunity if perjury did occur.
Initially, I think it is significant that the trial court did not base its denial of the defendant’s motion for a new trial on the defendant’s failure to prove due diligence, and this court is not constrained by the customary standard of deference which attaches to factual determinations made by the trial court.
I think that diligence should be evaluated in light of all surrounding circumstances. In this case, the defendant was charged with four misdemeanors. It is unrealistic to expect a misdemeanor defendant to canvass the neighborhood to try and locate persons who will be able to demonstrate that the prosecution’s star witness is lying, particularly where the defendant is relying on an alibi defense. Perhaps it would have been more diligent to attempt to discredit the expected false testimony, but I would not conclude that the defendant lacked due diligence in the preparation of his defense or search for exculpatory evidence. Unfortunately, what you do not know about the existence of relevant witnesses is what can hurt you. Wright, Federal Practice and Procedure: Criminal 2d § 557 at 327.
“ * * * Whether sufficient diligence was used must ordinarily be determined from the composite knowledge and conduct of both the accused and his counsel. All that is required is ordinary diligence, not the highest degree of diligence.” Id. at 327-329.
*762Although the burden is on the defendant to show due diligence in his search for the previously unexposed evidence, this court too easily makes the fulfillment of that burden unattainable. In this case, the level at which the majority place the due-diligence requirement is without logical or legal justification. United States v. Wains, 616 F.2d 283 (7th Cir.1980). I am left with a clear perception that the result reached by the majority in this case perpetuates a great injustice. At some point, the clear interests of justice must outweigh the mechanical application of an excessively high due-diligence hurdle. The manner in which the majority apply the due-diligence standard in effect determines that perjury is the acceptable norm for prosecutorial success in attaining convictions.
In prior cases where this court has affirmed a trial court’s denial of a motion for new trial, this court has emphasized that the defendant had knowledge of the existence of witnesses and failed to bring them. See Siegert v. State, Wyo., 684 P.2d 323 (1981), and Salaz v. State, Wyo., 661 P.2d 238 (1977). In this case, the defendant was not aware of the possible witnesses who we now know to be classmates of the complaining witnesses. Rather, it is clear that the existence of these witnesses came to light only after his trial and conviction in what appears to be appellant’s continued effort to avoid incarceration after his conviction based on principal-witness perjury.
The dialectic created by the affidavits and new-trial motion is that either felonious perjury was committed by the trial witnesses to obtain a criminal conviction, or false affidavits were filed by otherwise uninvolved persons in support of the motion for a new trial. By this court’s disposition based on lack of due diligence, we countenance a more serious crime than originally involved, without permitting the true facts to be ascertained.
I cannot find in constitutional obligation, Art. 5, § 2 of the Wyoming Constitution, or statutory direction, § 5-2-102, W.S.1977, that our responsibility has been met, nor, incidentally, that our duty to afford a charged defendant with due process is secured pursuant to Art. 6, § 6 and Art. 1, § 10 of the Wyoming Constitution. Perjury is an insidious pollutant gnawing at the very essence of the adjudicatory processes which serve as the hallmark of our democratic society.
The process by which the factual controversy in this case should be resolved is simple. When a motion for a new trial is supported by nonrecanted statements which materially challenge a significant prosecution witness by suggesting that witnesses’ testimony was perjured, there should be an evidentiary hearing to determine if a material and substantive conflict exists. This case is an obvious and uncluttered example. If the four young persons who would be appropriate witnesses all are called to appear before the trial court, namely, Allan J. Franklin and Joseph Jos-lyn, Jr. as prosecuting witnesses, and Do-menick Rittenhouse and Joshua Ritten-house as factual contestants, then the resulting testimony should be informative to the court and realistically dispositive. Either the defendant would present evidence sufficient for a new trial or dismissal of the criminal charge, or he would not. But justice will have been served and reason afforded to know that an innocent man did not go to jail on viciously concocted perjured testimony.
A standard should be established for the circumstance here presented, that a court is not required to grant a new trial on affidavit evidence, but when there is reasonable evidence of material peijury, the trial court should hold an evidentiary hearing. The hearing criteria can be emplaced within the standard rules normally enunciated in regard to new trial motions premised on newly discovered evidence as defined for discretion and decision.
This court has previously followed in a general way the rules outlined in United States v. Pope, 415 F.2d 685, 691 (8th Cir., 1969), cert. denied 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1970):
“ * * * (1) the evidence must be in fact newly discovered, that is, discovered since the trial; (2) facts must be alleged from which the court may infer diligence *763on the part of the movant; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved, and (5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal.”
We should follow the rule and the principle expressed in Lindhorst v. United States, 585 F.2d 361 (8th Cir.1978), wherein the court found error when the trial court concluded that an evidentiary hearing should not be required:
“The district judge cannot credit the recanting witnesses’ trial testimony and discredit their affidavits without affording appellant an opportunity to approve the allegations.” Id. at 365.
Lindhorst is a recantation case, and is certainly more confining than is this case where third-party evidence indicates material witness perjury. See Comment, Gary Dotson as Victim: The Legal Response to Recanting Testimony, 35 Emory L.J. 969 (1986). See also State v. Robillard, Vt., 520 A.2d 992 (1986), and State v. Robillard, 146 Yt. 623, 508 A.2d 709 (1986), where by the first appeal the question of false testimony was resubmitted to the trial court, and then in the second case, the Supreme Court of Vermont approved the hearing conducted which confirmed lack of believability. The standard to be applied, although relating to recanted testimony, is well taken.
“Accordingly, we hold that the standard to be applied in this jurisdiction, which, in essence, contains elements of both the standards discussed above is as follows: a new trial will be required when: (1) the court is reasonably well satisfied that the testimony given by a material witness is false; (2) without that testimony the jury probably would have reached a different conclusion; and (3) the party seeking the new trial was taken by surprise when the false testimony was given or did not know of its falsity until after the trial. We think this test best balances fair trial protections with the dangers and unreliability of recanted testimony.” State v. Robillard, supra, 508 A.2d at 713.
Of course, this court will not reverse a trial court’s denial of a motion for new trial based upon newly discovered evidence unless the appellant shows an abuse of discretion. In this case, the interests of justice so clearly favor a new trial that I would find that the trial court’s denial of the defendant’s motion without at least an evi-dentiary hearing amounted to an abuse of discretion. Under any standard, neither this court nor the trial court should sanction a criminal conviction obtained by perjured testimony. At least in cases where justice has been very apparently thwarted by testimony which later can be proven false, this court should not affirm a misdemeanor conviction obtained by what appears to be felony penury. I would remand the cause for an evidentiary hearing at which, based on the evidence then presented, the trial court could determine whether a new trial or judgment of acquittal is, as a matter of justice, properly required. United States v. Peltier, 731 F.2d 550 (8th Cir.1984).
The rule on diligence promoted by the court decision simply lacks rational justification in real life. It is implausible to suggest that one cannot produce later found testimony of admitted perjury on the basis that everyone with whom some contact by the principal witness may have occurred could have known something which related to testimony validity. In the academic sense, some confidence that witnesses will not commit perjury or that penury can be detected by cross-examination must exist, or due diligence becomes a question of the sufficiency of finances to defend, and justice is determined by wealth. United States v. Walus, supra. This court has simply been unable to find any case reflecting absence of due diligence which encompasses the same standard as will be imposed by this decision. As applied, the new due-diligence criteria require that in order to demonstrate diligence, every adult in the immediate area or every nonadult in Natro-na County should have first been interviewed to see whether he or she had talked to the complainants about these events. The majority argue from conclusion to premise by asserting that since it was possible to later establish, it was not due diligence to have failed earlier to discover. The extension of such logic would require *764Einstein’s theories to have been discovered by cavemen. Apparently this court in the current opinion now converts this case from a witness-perjury question to an ineffectiveness-of-counsel status within the purview of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I decline to accept this application.
I would reverse and remand for an evi-dentiary hearing directed to determine whether false and perjured trial testimony was given by the complaining witnesses. The majority recognize that Randy Keser may be innocent and may have been convicted by perjured testimony, and then affirm because earlier discovery had not revealed classmates with whom confidences had been exchanged. This recognition and result establish for Wyoming a system of due process confined by perjury. This result goes far toward undermining public confidence in Wyoming’s judicial system.
Although not intentional in this case, where the falsity, if actually existent, was not known to the prosecution, I would believe that United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), in majority and dissent is philosophically applicable. See also Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). I would apply the standard enunciated by the North Carolina Supreme Court in State v. McDowell, 310 N.C. 61, 310 S.E.2d 301, 309 (1984):
“ * * * Would the evidence, had it been disclosed to the jury which convicted defendant, and in light of all other evidence which that jury heard, likely have created in the jury’s mind a reasonable doubt which did not otherwise exist as to defendant’s guilt?”
In this case, the newly discovered evidence, had it been disclosed, almost certainly would have created in the mind of the jury a reasonable doubt as to defendant’s guilt.