dissenting in part, concurring in part.
Todd Hall was charged with aiding and abetting first degree murder and conspiracy to commit first degree murder of Jeff Green. Hall filed a motion to dismiss claiming that he had been granted transactional immunity by the Uinta county attorney for the crimes of conspiracy to commit murder and conspiracy to obtain perjured testimony, the result being that he claimed immunity for all charges arising out of the incident (transaction) resulting in Green’s murder. The immunity grant occurred during an investigative interview of Todd Hall conducted by Utah and Wyoming officials. The interview was conducted on the record with Hall’s counsel present. The grant of immunity took place as follows:
MR. HOUSLEY: This is Todd Hall here under investigative subpoena. We’ve told him what we discussed with you earlier and that is we’re prepared to give Mr. Hall transactional immunity under the statute and contained in [Utah Statute] 77-22-2 for his testimony with these conditions: Number one, that his statement be truthful. Number two, that it be complete. Number three, that it be supported, if requested, by polygraph examination. Number four, that he be prepared to testify in conformity with that statement. Would you read back those conditions?
REPORTER: “One, his statement be truthful. Two, that it be complete. Three, that he be prepared to testify in accordance with that statement. Four, that he be prepared to support any part of that statement that he may be requested to support by taking a polygraph examination on it. Five, that his statement not disclose that he actually did the killing or was present at the time of the killing.”
MR. HANSEN [Counsel for Todd Hall]: We had a preliminary discussion on the polygraph. I asked that that not be a condition for the reasons discussed earlier.
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MR. HOUSLEY: * * * The immunity we’ve indicated to Mr. Hansen we would provide to his client was, as I said, transactional immunity for the crimes in Utah of conspiracy to commit murder and conspiracy to obtain perjured testimony.
MR. HANSEN: I understand you’re providing the same immunity in Wyoming to him; is that right?
MR. LEHMAN: Yes.
The district court reviewed the motion to dismiss and the State’s response to that motion. The district court issued an extensively researched decision letter. The district court then entered an order which decreed:
1. The Defendant, Todd Hall was granted transactional immunity against prosecution for conspiracy to commit murder and conspiracy to suborn perjury-
2. The Defendant’s Motions to Dismiss the charges against him based on the claim that his Sixth Amendment right to counsel and based upon the claim of prosecutorial delay in filing charges against him, and the State’s claim that the Defendant has failed to comply with the terms of the grant of immunity and has thereby forfeited his right to immunity are set for an evidentiary hearin***
Later the district judge issued an additional decision letter. In that letter the district judge notes that it is not necessary to have a pretrial hearing on the forfeiture of immunity issue. The decision letter states:
It seems such a needless duplication of effort to me to have two hearings when *1272one would do because, even if a separate preevidentiary were to be had, at the trial of the case virtually the same evidence as to guilt or innocence would be offered by the prosecution, whether Hall forfeited his immunity or not.
* * * I prefer to have but one trial as suggested in procedure 2 above, the issue of forfeiture to be first decided by the judge during the case in chief, and then submitted, with proper instructions, to the same jury hearing the eases on the charges against both Defendants.
On reviewing the “facts” provided me by the State and the Defendants, I cannot, without more, say whether Hall has forfeited his grant of immunity on the conspiracy charge or not. * * *
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Accordingly, all motions filed by the Defendants are denied[.]
The decision letter goes on to state that a review by the supreme court on a writ of certiorari would be “eminently fitting” since there is virtually no Wyoming law on the questions raised. The district court’s final order provided:
THE COURT HEREBY SPECIFICALLY FINDS that Defendant Todd Hall was granted transactional immunity on March 4, 1981, against any and all prosecution for conspiracy to commit murder and conspiracy to obtain perjured testimony. It is the further finding of the Court that the grant of immunity for conspiracy to commit first degree murder given Todd Hall on March 4, 1991, extends to State and Federal Courts.
In reference to the State’s claim that Defendant Hall violated and forfeited his grant of transactional immunity because of his failure to make a complete and truthful statement;
IT IS HEREBY THE ORDER OF THE COURT that a ruling will be reserved on the issue of forfeiture of the grant of immunity which shall be decided at trial by the presiding judge during the case in chief, and then submitted with proper instructions to the same jury hearing the case as on the charges against both Defendants. Forfeiture of the grant of immunity at that proceeding shall be shown by a preponderance of the evidence.
IT IS THE FURTHER ORDER OF THE COURT that there is no grant of immunity to Defendant Todd Hall by the State of Wyoming on the issue of aiding and abetting the crime of first degree murder.
The posture of this case after the district court’s final order was that Hall would be tried on the aiding and abetting charge and also upon conspiracy to commit first degree murder with the immunity forfeiture question to be decided at the end of the State’s case. This court granted Hall’s petition for writ of certiorari.
This court in its majority opinion states: We further hold that, when a claim of immunity is presented, the trial court shall hold a pretrial hearing to determine whether the case can go to trial.
Maj. op. at 1263. It is clear that the pretrial hearing mandated is an evidentiary hearing. My disagreement with the majority's holding is that it makes this pretrial hearing mandatory in every case in which there is a claim of immunity.
Most courts decide transactional immunity issues prior to trial. United States v. McDaniel, 449 F.2d 832 (8th Cir.1971), cert. denied, 405 U.S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460 (1972); Zani v. State, 701 S.W.2d 249 (Tex.Cr.App.1985); County v. State, 812 S.W.2d 303 (Tex.Cr.App.1989); People v. Backus, 23 Cal.3d 360, 152 Cal.Rptr. 710, 590 P.2d 837 (1979); United States v. Dornau, 356 F.Supp. 1091 (S.D.N.Y.1973). In most cases, the initial determination of the granting of transactional immunity will not require an eviden-tiary hearing since it is a question of law, and the parties’ agreement for immunity will be expressed in the record. People v. Thompson, 145 Cal.App.3d 918, 193 Cal.Rptr. 782, 788 (1983).
In this case the trial court ruled that Hall had transactional immunity for the crimes of conspiracy to commit first degree murder and to suborn perjury. The State claimed forfeiture of that immunity. Judge Hamm then, in ruling upon the *1273State’s forfeiture claim, stated, “On reviewing the ‘facts’ provided me by the State and the Defendants, I cannot, without more, say whether Hall has forfeited his grant of immunity on the conspiracy charge or not.” He also stated that in the trial of the aiding and abetting charge, the same evidence would be introduced whether Hall had immunity or not — thus, nothing would be gained by holding a pretrial evi-dentiary hearing. The trial court obviously reasoned that the State must first prove the crime of first degree murder before it can prove that Hall aided and abetted that murder. In this circumstance, nothing is gained by a pretrial evidentiary hearing. I agree with the ruling and would affirm the trial court’s decision.
I agree nevertheless that there are cases in which a pretrial evidentiary hearing on immunity questions may be necessary. One such case might be where immunity is claimed for a single charge to be tried. A pretrial evidentiary hearing might avoid a trial. Another case might be where a defendant is charged with two crimes, one for which there is no immunity and the other for which immunity is claimed. In this case, if the evidence upon the charge for which immunity is claimed would not be admissible at trial, then whether immunity was forfeited should be determined before trial at a pretrial evidentiary hearing. If the court decides at the pretrial hearing that defendant retained immunity for the crime charged, I would hold that the State would not be allowed to raise the forfeiture issue again at trial; and if the court concluded that immunity was forfeited, the defendant may have that question presented to the jury for decision upon proper instructions.
Allowing the State to again raise the issue of forfeiture after an unfavorable pretrial decision of the trial court would prejudice the jury against the defendant on the remaining charge and also undermine the advantage the defendant sought to gain via the immunity agreement. Permitting the State to raise forfeiture, would permit the State to try persons for offenses for which they were granted immunity. Therefore, I disagree also with that portion of the majority opinion which allows the State, after an unfavorable decision at the evidentiary hearing, to again present that issue at trial.
The majority states:
At the trial, * * * [i]f the defendant presents a prima facie case, then the State must assume the burden of demonstrating beyond a reasonable doubt that no agreement actually was made with respect to immunity; any limitations upon any agreement that was made; or, that the immunity extended has been forfeited.
Maj. op. at 1269. I would hold that the State should be permitted to present evidence upon the forfeiture claim at trial in front of the jury only if the defendant, after an unfavorable decision, asserts immunity as a defense at trial.
Under the rule I propose, three scenarios can take place. The district court can decide upon the record without a pretrial evidentiary hearing: (a) that immunity was granted and the case is over on that charge; (b) that no immunity was granted and the case proceeds to trial; or (c) that a critical question of fact (or taint in the case of use immunity) exists that the court is not able to determine from the record, affidavits or preliminary hearing testimony. In that case, the district court should hold a pretrial evidentiary hearing unless the same evidence will in all events be presented at trial upon other charges. At the conclusion of the pretrial evidentiary hearing, the court could find that immunity was not forfeited, and the charge would be dismissed. In the alternative, the court could find that the immunity was forfeited, and the case would proceed to trial. At trial the defendant could raise immunity as a defense, if he chooses, with the jury to ultimately determine the question upon proper instructions.
This procedure is fair to all parties. It gives the State an opportunity to prove its claim of forfeiture. It also avoids the defendant standing trial upon a charge for which he has been granted immunity by the State simply continuing to claim forfei*1274ture. The result of the majority’s procedure would be that the State, by claiming forfeiture in every ease, may present evidence otherwise inadmissible if defendant had been granted immunity. Such requirement is not appropriate. It results because the majority relies upon a Denno analogy which has no application to this case.
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), involved volun-tariness of a confession. Thus, if the defendant claimed that his confession was involuntary, the court must hold a pretrial Denno hearing. Denno, 378 U.S. at 391, 84 S.Ct. at 1788-89. If the confession is involuntary, it is suppressed. And even under Denno, the State cannot then utilize the confession at trial and ask that the jury find that the judge’s ruling to suppress was incorrect. Denno, 378 U.S. at 394, 84 S.Ct. at 1790. The majority’s procedure allows the State to do just that where immunity is claimed. Under the majority’s opinion the State can still proceed to trial on the charge, under the argument of forfeiture, even though the judge has ruled that the defendant had transactional immunity.
On the issue of whether immunity for conspiracy would cover the aiding and abetting charge, the district court ruled:
IT IS THE FURTHER ORDER OF THE COURT that there is no grant of immunity to Defendant Todd Hall by the State of Wyoming on the issue of aiding and abetting the crime of first degree murder.
I would affirm this decision of the district court.
I, therefore, dissent to the portion of the opinion that requires a Denno-type hearing in every case and which allows the State to raise the forfeiture issue at trial even after the trial court has decided that issue against the State in a pretrial hearing. I concur in the portion of the opinion which requires a pretrial evidentiary hearing on the forfeiture where evidence upon the immunity claim charge would be excluded at trial if immunity existed.
I would affirm the decision of the trial court.