dissenting, with whom LEHMAN, Chief Justice, joins.
After careful consideration, I have concluded that Beintema’s trial was not fundamentally fair. I, therefore, respectfully dissent.
The facts of this case are that the prosecutor and Huskinson, the primary testifying witness against Beintema, falsely told the jury that there was no plea agreement for that testimony when, in fact, investigating officers and the district attorney had promised Huskinson that his family would not be prosecuted, and he would receive a probation recommendation in exchange for his testimony against Beintema. We know that the statements are false because the prosecutor testified in the post-trial hearing that there had been a plea agreement as defined in Wyo. R.CRIM. P. 11(e), and Huskinson, while denying it was a “deal,” nevertheless described a plea agreement. His description of the “deal” caused the judge presiding at the post-trial hearing to interrupt Huskinson’s testimony, advise him of his Fifth Amendment rights, and warn that perjury charges could result from continued testimony. At that same post-trial hearing, the prosecutor testified that he did not disclose Huskinson’s plea agreement to Beintema’s trial defense counsel during a face-to-face conversation occurring before trial and despite defense requests for such information. The transcript from Huskinson’s change of plea hearing reveals that the prosecutor only informed Beintema’s trial defense counsel that there was a probation recommendation, but did not inform him that the probation recommendation was in exchange for testimony against Beintema. That transcript reveals that the prosecutor also did not inform the court of that condition as is required of the prosecution.
This deception produced the desired result when, at trial, Beintema’s defense counsel did not challenge the prosecutor or Huskin-son when both falsely told a jury that there had been no plea agreement and did not raise the plea agreement issue during his cross-examination of Huskinson. It further produced the desired result of a conviction in a weak ease for charges based solely upon the testimony of a witness who the jury did not know had a possible interest in testifying falsely against Beintema in order to protect his family and his liberty. Any suspicion the jury may have had regarding Huskinson’s bias was effectively allayed by the prosecutor’s false statement to them. The question before us is whether the prosecutor’s conduct in making a false statement to the jury and in allowing his primary witness to make a false statement to the jury requires a new trial regardless of the conduct of defense counsel.
It is well-established constitutional law that when a prosecutor makes false statements or knowingly allows a witness to make false statements, a due process violation has occurred, a fair trial has been denied if the jury’s judgment was affected, and the defendant is entitled to a new trial. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269-72, 79 S.Ct. 1173, 1177-78, 3 L.Ed.2d 1217 (1959). Both Giglio *1131and Napue involved plea agreements, and their holdings were reached even though the false testimony went only to the credibility of the witness. Because the prosecution deliberately failed to disclose that the probation recommendation was in exchange for testimony against Beintema, defense counsel had no due diligence duty to make further inquiry, and because the connection was not discovered until after trial and is, therefore, newly discovered evidence, the answer to the question before us is, yes, there must be a new trial. I must, therefore, respectfully dissent.