(dissenting). I agree with the majority that “the plea agreement is ultimately a constitutional contract.” Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Calif. L. Rev. 471, 473 (1978). While law guides the court’s initial analysis of the formation dissolution of plea agreements, there are overriding principles which limit the usefulness of contract law anaysis.
One such principle is the due process rights of the defendant which are implicated in the repudiation of a plea agreement. The state’s refusal to honor a plea agreement after a guilty plea has been entered may undermine the voluntariness of the plea or may result in fundamental unfairness to the defendant. Santobello v. New York, *421404 U.S. 257 (1971); Austin v. State, 49 Wis. 2d 727, 734-736, 183 N.W.2d 56 (1971).1
A second principle is the public’s interest in the sound and effective administration of the criminal justice system. The public has an interest in seeing that the criminal statutes are enforced; that rights guaranteed by the state and federal constitutions are granted; that there is certainty and finality in guilty pleas; and that prosecutors are held accountable in the performance of their duties.
To vacate the plea agreement in the case at bar, the majority requires the state to prove beyond a reasonable doubt (1) that the defendant committed perjury and (2) that the act of perjury was a substantial and material breach of the plea agreement.2 Accepting this statement of the applicable law, I dissent because I conclude that the evidence in the case at bar is insufficient to support the circuit court’s finding beyond a reasonable doubt that the defendant committed perjury and because I conclude *422that the facts and circumstances in the case at bar do not justify vacating- the plea agreement.
While the circuit court did not enter findings of fact or conclusions of law, the findings can be gleaned from the circuit court’s decision. The circuit court found that a plea agreement had been consummated between defense counsel on behalf of the defendant and an assistant district attorney on behalf of the state, the terms of which are set forth in the record as follows: The defendant agreed to take a second lie detector test. If the test result showed the defendant was being truthful in denying direct participation in the actual stabbing of the victim and in denying any prior knowledge that Rodriguez intended to harm the victim, the state would charge the defendant with robbery and would forbear charging the defendant as a party to the murder. The defendant agreed to plead guilty to the robbery charge and the state was free to recommend any sentence it deemed appropriate. Furthermore, the defendant agreed to testify truthfully in the state’s prosecution of Rodriguez whenever requested to do so by the state.3
I.
The district attorney contends that the defendant breached the last term of the plea agreement, i.e. to testify truthfully, by lying at the Rodriguez preliminary hearing and thus making it impossible for the state to call him as a witness at the Rodriguez trial. If the state called the defendant as a witness at trial, asserts the district attorney, it “would be suborning perjury,” it would be a “violation of the Code of Professional Re*423sponsibilities to use a witness who you think would be perjurable [sic].”
In vacating the agreement the circuit court concluded, beyond a reasonable doubt, that the defendant “lied under oath at the Rodriguez preliminary hearing” and that the defendant “breached by perjury.” Supplemental Finding No. 1 dated July 29, 1980.
On review the majority applies the rule that the findings of fact made by the circuit court will be upheld unless they are clearly erroneous and against the great weight and clear preponderance of the evidence. Supra pp. 415, 416.4 Applying the great-weight-and-clear-preponderance test to the circuit court’s findings in this case requires the findings of perjury be supported by evidence sufficient to meet the “beyond a reasonable doubt” burden of proof. Madison v. Geier, 27 Wis. 2d 687, 690, 135 N.W.2d 761 (1965). In other words, the test applied upon appeal to this court is whether the evidence adduced, believed and rationally considered by the circuit court was sufficient to prove the defendant’s guilt beyond a reasonable doubt. Cf. Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965).
The majority holds the evidence in the case at bar sufficient to justify the circuit court’s finding beyond a *424reasonable doubt that the defendant’s testimony was “perjurous testimony,” constituting a breach of the plea agreement. Supra p. 416. I view the evidence as insufficient to prove beyond a reasonable doubt that the defendant committed perjury.
Not all false statements under oath constitute perjury. Sec. 946.31, Stats. 1979-80 ;5 State v. Evans, 229 Wis. 405, 282 N.W. 555 (1938). A person who testifies falsely but in good faith with the honest belief that he is telling the truth is not guilty of perjury. The defendant agreed to testify as to what he believes to be the truth. That there is evidence which is inconsistent with the defendant’s testimony and which indicates that the defendant’s testimony is objectively false does not necessarily prove that the defendant committed perjury. Perjury requires proof of scienter. The defendant’s lack of belief as to truth of his statements must be discerned by the trier of fact from the totality of the evidence before it.
The defendant’s testimony under oath which the circuit court concluded was perjurous was substantially the same as the story he gave to the police immediately after the incident.
At the Rodriguez preliminary hearing the defendant stated that he and Rodriguez went to a service station to steal money and that Rodriguez began stabbing the victim. He further testified that he neither got near nor had. any physical contact with the victim. The defendant said that after Rodriguez stopped stabbing the victim, he *425(the defendant) fled the station ahead of Rodriguez. He testified he knew Rodriguez was fleeing the station after him when he heard the sound of the brakes of. a car which nearly hit Rodriguez who was crossing a road the defendant had just crossed.6
After Rodriguez’s preliminary hearing, the newly elected district attorney, who was prosecuting the Rodriguez case, concluded that the following evidence (which was to a large extent available to the district attorney’s office at the time of the plea agreement)7 conflicts with the defendant’s testimony and proves that the defendant committed perjury:
*426(1) Two witnesses stated that they observed the defendant and Rodriguez flee the station through the garage doors and that the two were close enough to touch each other as they fled. This testimony appears to contradict defendant’s testimony that he fled through the service door ahead of Rodriguez shortly after the stabbing.
(2) The autopsy report on the victim indicated that he had a “herring-bone pattern” bruise on his forehead which matched the pattern on the sole of the defendant’s shoes, not Rodriguez’s shoes. A Crime Laboratory report stated that defendant’s pants and undershorts had blood stains which were consistent with the victim’s blood type and “factors.” The two reports appear to contradict defendant’s testimony that he neither got near nor had any physical contact with the victim.
Neither the eyewitness testimony nor the physical evidence establishes perjury beyond a reasonable doubt.
On close analysis the eyewitnesses’ description of the defendant and Rodriguez leaving the building are not significantly different from the defendant’s. The defendant’s own testimony shows that he did not leave the building very much sooner than Rodriguez. There is no description of the relative position of the garage door and the service door; I cannot evaluate the importance of this discrepancy. The majority assumes that the eyewitnesses’ testimony is totally correct, that the defendant’s version is totally incorrect, and that the defendant must have knowingly lied. Neither the circuit court nor this court heard or saw the witnesses. Neither court can judge the credibility of the witnesses. Eyewitnesses and the defendant can be honestly mistaken in observation and recollection.8
*427The physical evidence does not exclude to a moral certainty every reasonable hypothesis that the defendant’s testimony is truthful.
The blood stains on defendant’s clothing could have been caused by the spurting of the victim’s blood. The doctor who performed the autopsy stated that there could be a lot of blood from 28 stab wounds and that it would be difficult to predict its dispersion. A witness testified there was a lot of blood in the area where the victim was lying.
The defendant’s shoe print on the victim does not prove beyond a reasonable doubt that the defendant perjured himself with a negative answer when asked whether he had any “physical contact” with the victim. The doctor testified that the print could have been caused by kicking or stepping. Given the focus of both the plea agreement and the questioning of the defendant at the preliminary hearing, namely whether or not the defendant was actually involved in the stabbing or knew beforehand that Rodriguez intended to harm the victim, the defendant could well have understood the question about physical contact to refer to the time of the stabbing, not to when he was exiting the scene. There is no perjury if the defendant misunderstood the question. In view of the defendant’s emotional state,9 the defendant could have stepped on the victim’s head when he fled the scene without being aware of what he did. The defendant’s diagram of the scene of the crime places the body of the victim in such a position that the defendant would have to run past the body to exit the scene as he asserts he did.
*428It is important to remember that the state did not enter into a plea agreement with the defendant whereby the defendant agreed to be an “unimpeachable witness.” The defendant agreed only to be a truthful witness, to tell what happened to the best of his recollection. On the basis of this documentary record the state may have proved that the defendant is not worthy of belief, but the state has not shown with the requisite clarity that the defendant committed perjury.10
II.
Assuming arguendo that the defendant breached his obligation under the plea agreement to testify truthfully, I conclude that under the peculiar combination of facts and circumstances in this case the circuit court should not grant the state’s motion to vacate the plea agreement.
As the majority acknowledges, supra, p. 414, not all breaches by the defendant justify releasing the state from the plea agreement.11 Under contract law, some *429breaches of contract entitle the non-breaching party to money damages but do not discharge the non-breaching party from performing its obligations under the contract. Other breaches, labeled material or substantial breaches, discharge the non-breaching party from performing its obligations under the contract. Seidling v. Unichem, Inc., 52 Wis. 2d 552, 554, 191 N.W.2d 205 (1971); Appleton State Bank v. Lee, 33 Wis. 2d 690, 692-93, 148 N.W.2d 1 (1967).
The test of what is a material breach is necessarily imprecise and flexible. Comment, sec. 241, 2 Restatement (Second) Contracts 237 (1981). Labeling a breach as material is a shorthand way of saying that under the circumstances of the case the breach is of such a nature as to warrant discharging the non-breaching party from performing its obligations under the contract.
In a plea agreement case the court must be cautious in determining whether a breach is material, i.e., whether the breach destroys the essential objective of the agreement thereby releasing the “innocent” party from fulfilling its promises. In a criminal case, unlike in the usual contract case, money damages cannot be awarded to the state to rectify the harm caused by the breach.12 *430The obvious and sometimes the only remedy available to the state if the defendant breaches the plea agreement is to vacate the plea agreement. The court must therefore be cognizant of the impulse to find a remedy for every breach and to vacate the plea agreement in situations where such a drastic remedy is not warranted under either principles of contract law or considerations of due process or considerations of the sound and effective administration of the criminal justice system.
The majority opinion — correctly expressing disapproval of perjury — holds that the defendant’s perjurious testimony constitutes a “material breach.” The majority does not, however, explain how or why it reaches this conclusion other than to intimate that any perjurious testimony always justifies vacating the plea agreement. I do not condone perjury, and prosecutors should not condone perjury. But the state’s remedy for punishing perjurious testimony is not limited to vacating the plea agreement. The state can charge the defendant with the felony of perjury.
On the basis of the peculiar combination of facts and circumstances in the case at bar, I conclude that the defendant has not committed a material breach, that is that the state should not be discharged from its obligations under the plea agreement.
First, the evidence shows, beyond a reasonable doubt, that the state viewed the defendant’s agreement to testify in the Rodriguez trial as a secondary, indeed minor, term in the plea agreement. The defendant offered to testify as a state’s witness in the absence of the agreement. The defendant’s testimony was therefore not “of the essence” of the agreement. The key factor for the state’s entering the agreement was not that the defendant was going to testify on behalf of the state but that the *431state’s attorney concluded, in the exercise of prosecutorial discretion, that fairness and justice did not require the defendant to be charged with murder if he was not a direct participant in the stabbing. 1 A.B.A., Standards For Criminal Justice, The Prosecution Function secs. 3-4.1, 3-4.2; The Defense Function secs. 4-6.1, 4-6.2 (2d ed. 1980). For a discussion of prosecutorial discretion, see State v. Karpinski, 92 Wis. 2d 599, 285 N.W.2d 729 (1979); SCR 20.34(2) (j), (k) (1982) ; Comment, Justice Department’s Prosecution Guidelines of Little Value to State and Local Prosecutors, 72 J. Crim. L. & Criminology 955 (1981).
That the defendant’s testimony on behalf of the state was a secondary aspect of the plea agreement is well documented in numerous places in the record. The assistant district attorney described the defendant’s agreement to testify against Rodriguez as a secondary term of the agreement both at the hearing at which the guilty plea was accepted13 and at the habeas corpus proceedi*432ng.14 When the circuit court explained the terms of the plea agreement to the defendant before the court accepted the defendant’s guilty plea, the court did not refer to the defendant’s testimony in the Rodriguez trial at all. The circuit court referred only to the lie detector test.15
Finally, the assistant district attorney, in a letter dated May 30, 1979, in response to a discovery request by Rodriguez’ attorney, set forth the factors underlying the plea agreement with the defendant and characterized the defendant’s agreement to testify against Rodriguez as “not a major factor” in the plea agreement. The plea agreement hinged on the physical evidence and the defendant’s statement confirmed by the polygraph.16
*433Second, as I stated previously, the assistant district attorney entered into the plea agreement with knowledge (actual or constructive) of the very evidence upon which the district attorney now bases his assertion that the defendant committed perjury. The assistant district attorney said he took the physical evidence and police investigation into account when he entered into the agreement. 17 In any event, the state must be deemed to have examined its own files and the investigator’s files available to it before it entered into the plea agreement and to have satisfied itself as to the inconsistency between the defendant’s statements and the other evidence then available.
Third, the district attorney’s office obviously had doubts about the defendant’s veracity in denying his participation in the killing. Hence the polygraph examination.18 The defendant’s statements which the state veri*434fied by the polygraph examination are substantially similar to the defendant’s testimony which the state now alleges is perjurious. That further review of the evidence (evidence available at the time of the plea agreement) indicates that the polygraph result might have been wrong should not justify the state’s repudiation of the plea agreement. The plea agreement was entered on the condition that the polygraph test be passed.19 Defendant passed the test and testified in court in the same way as he had answered the questions during the polygraph test. Under these facts the state should not be able to reopen the plea agreement at a later date on the issue of *435defendant’s veracity. See People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975).
Fourth, it appears from the record that the reason the state seeks to vacate the plea agreement is that a new district attorney, using hindsight, apparently determined that an assistant district attorney erred in entering into the plea agreement. Nevertheless the plea agreement was negotiated on behalf of the state by an assistant district attorney acting within his power, and the court should not vacate a plea agreement because the state later concludes the agreement was unwise.
Whether we like them or not, plea agreements play a significant role in the criminal justice system. See Note, Guilty Plea Bargaining: Compromises By Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865 (1964). Since an estimated 90 percent of criminal convictions are the result of guilty pleas and since much of the work of the typical district attorney’s office consists of participation in negotiations leading up to the guilty pleas, the effective and sound administration of the criminal justice system requires that the bench, the bar and the public have confidence that prosecutors conduct themselves properly in the negotiations leading to guilty pleas. 1 A.B.A., Standards for Criminal Justice, The Prosecution Function secs. 3-4.1 to 3-4.3; The Defense Function secs. 4-6.1, 4-6.2 (2d ed. 1980).
While engaging in plea bargaining the prosecutor, at a minimum, must evaluate all the information then available relating to the charge, to the defendant’s background, and to any other factors bearing on whether there should be a plea or a trial. The state, the defendant and the public must be able to treat a conviction on a guilty plea as the final judgment. Circuit court time is taken in entering the guilty plea. Additional circuit court and appellate court time will be taken if the state seeks to vacate the guilty plea. If the guilty plea is va*436cated the defendant may be brought to trial many years after the crime occurred; in the case at bar almost four years have elapsed since the murder. Witnesses may be dead or gone, or their memories may have faded. Both the state and the defendant must enter a plea agreement viewing it as the final step, not an easily reversible step.
In this case the state got exactly what it should have expected when it entered the agreement. The state knew what the defendant’s testimony would be and the defendant’s testimony comports with the state’s expectations. The district attorney does not argue that he is relying on any “newly discovered” evidence to prove defendant’s perjury. The district attorney’s office had eight months — from June 5, 1978, when the killing occurred, until February 6, 1979, when the plea agreement was revealed in circuit court — to verify the defendant’s testimony. The assistant district attorney did verify the defendant’s testimony with a polygraph in which the defendant “passed” the very questions in issue now.
In our system of law the state must be held to a high, strict standard that it fulfill its prosecutorial promises, not merely to vindicate the expectation of the defendant as to state behavior but more importantly to vindicate the expectation of the public as to state behavior and to promote the sound and effective administration of the criminal justice system. As the United States Court of Appeals said in United States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972):
“There is more at stake than just the liberty of this defendant. At stake is the honor of the government [,] public confidence in the fair administration of justice, and the efficient administration of justice . . . .” Quoted with approval in Cooper v. United States, 594 F.2d 12, 20 (4th Cir. 1979).
*437In the case at bar, the public has an interest in having the defendant be convicted of the crime which he committed, not a greater crime, nor a lesser crime. The public has an interest in punishing perjury. The public has an interest in requiring the prosecutor’s office to weigh carefully all factors before entering a plea agreement. The public has an interest in finality of convictions. The public has an interest in assuring individuals their constitutionally granted rights. The public has an interest in having the state abide by its promises. For the reasons I have set forth, I conclude that these interests of the public, which are encompassed in the phrase the effective and sound administration of criminal justice, are, on balance, best served in the case at bar by not vacating the guilty plea.
For the foregoing reasons I dissent. I would reverse the order of the circuit court vacating the plea agreement.
I am authorized to state that Justice Nathan S. Hef-fernan joins me in this dissent.
The court must consider vacating the plea bargain in light of the significant consequences of a guilty plea and the important constitutional rights being waived by the defendant. The defendant in the case at bar, in reliance on the plea agreement, pleaded guilty to a robbery charge thereby waiving his right to both a jury trial and confrontation of the witnesses against him. The defendant also waived his right of self-incrimination and testified at Rodriguez’s preliminary hearing consistently with his previous statements. Since March 2, 1979, the defendant has been in a state prison serving his six-year sentence. United States v. Swinehart, 614 F.2d 853, 858 (3d Cir. 1980); United States v. Bowler, 585 F.2d 851, 853 (7th Cir. 1978).
The state asserts two grounds for the vacation of the plea agreement: It was fraudulently induced. It was breached. The majority concludes that the plea agreement should be vacated on the grounds of breach and does not reach the inducement issue. I also limit my discussion to the issue of breach. Using similar reasoning, however, I would conclude that fraud was not proved and that the facts do not justify the court’s vacating the plea agreement on the grounds that that agreement was fraudulently induced.
For a discussion of the use of this type of condition, see 1 A.B.A., Standards for Criminal Justice, Pleas of Guilty, secs. 1.4 and 1.8(a) (iv) (2d ed. 1980); Newman, Conviction: The Determination of Guilt or Innocence Without Trial, 186-187 (1966).
For purposes of analysis, I use the standard set forth by the majority for review of the circuit court’s findings. Nevertheless I believe the usual standard for review of circuit court findings is not applicable in this case where the evidence is documentary. The circuit court made its findings of fact on the basis of a transcript of a proceeding held before another court; it did not see or hear the witnesses. Under such circumstances this court is as capable of analyzing the record and making findings of fact as is the circuit court. Delap v. Institute of America, Inc., 31 Wis. 2d 507, 510, 143 N.W.2d 476 (1966); Vogt, Inc. v. Int’l Brotherhood, 270 Wis. 315, 321i, 71 N.W.2d 359, 74 N.W.2d 749 (1955, rehearing 1956). I would not defer to the circuit court’s findings of facts. This court should review the record and make its own findings of fact.
Sec. 946.31(1), Stats. 1979-80, defines the elements of the crime of perjury as follows:
“Whoever under oath or affirmation orally makes a false material statement which the person does not believe to be true, in any matter, cause, action or proceeding, before any of the following ... is guilty of a Class D felony:
“(a) A court;
“(b) A magistrate;
“(c) A judge ... ;”
The defendant testified as follows:
“Q Did Eddie say anything as he was stabbing Mr. Jensen? A He said — he said a couple of times die, die.
“Q Did you say anything at that point? A I asked — I talked to him, tried to tell him to stop, but then he told me not to say nothing, and he was gonna do it to me, so I just started running.
“Q Did Eddie say something to you? A Yeah.
“Q What did he say to you? A He said that if I — I better not say nothing about it otherwise he was gonna do it to me.
“Q All right. Then what happened? A That’s when I started running.
“Q And where did you run at that time? A Straight out across the street into the field.
“Q Did you see Eddie Rodriguez leave Jensen’s gas station? A I didn’t actually see him leave; I seen him when he got to the road, though.
“Q Did you ever get near Mr. Jensen? A No.
“Q Did you at any time have any physical contact with Mr. Jensen on that date? A No, sir.”
All the physical evidence, the names of the eyewitnesses and some statements of the eyewitnesses were in the district attorney's or investigators’ files when the plea agreement was reached. I conclude the district attorney’s office should be held to know the evidence which is in its files or which is readily available to it in the investigators’ files. Cf. Wold v. State, 57 Wis. 2d 344, 349-350, 204 N.W.2d 482 (1973).
The vagaries of eyewitness testimony are well documented. United States v. Wade, 388 U.S. 218, 228 (1967); United States v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Tel*427faire, 469 F.2d 552, 558 (D.C. Cir. 1972); Hampton v. State, 92 Wis. 2d 450, 465, 285 N.W.2d 868 (Abrahamson, J. concurring).
The defendant, a seventeen-year old, had witnessed a brutal stabbing and had been warned by Rodriguez to shut up or he’d be next. The defendant ran out of the station and then fled from the area. He voluntarily flagged down a police car and gave the police a statement about the crime. The police described the defendant as emotional and crying.
The majority opinion appears to concede that perjury was not proved beyond a reasonable doubt. The majority opinion states, supra p. 416, “the evidence at the hearings in the habeas corpus action established that Rivest in all probability played a significantly greater role in the murder of Floyd Jensen than he owned up to or testified to and that evidence compels us to hold that Rivest’s perjured testimony materially breached the plea agreement.” (Emphasis supplied.)
“[W]e must determine as a fact whether the defendant’s breach is such as to prevent the performance that is rendered by him from being ‘substantial’ performance. The question is often put thus: Does his breach go to the essence? If the breach is relatively minor and not ‘of the essence,’ the plaintiff is himself still bound by the contract; he can not abandon performance and get damages for a ‘total’ breach by the defendant.” Corbin, On Contracts sec. 700, at 654 (1952).
“It is not always that a breach of contractual duty by one party to a bilateral contract discharges the duty of performance on the *429part of the other. As the term ‘breach’ is used, a contractor who has committed a breach is guilty of a wrong for which some remedy is available, the remedy varying with the case. Being guilty of a wrong does not make him an outlaw or deprive him of all rights, even the rights that were created by the very contract that he breaks. This is true, in spite of many a contrary dictum, even when his breach is ‘wilful’. Indeed, it seems best to say that breach by one party never discharges the other party, regarding breach merely as a wrong without regard to the extent and quality of its ill effects. When those ‘effects’ are so material to the interests of the other party that a mere judicial remedy is not sufficient to satisfy the requirements of justice as felt by the community, the legal duty of that other party is either suspended or discharged.” Corbin, On Contracts sec. 1253 at 1013 (1952).
See Petition of Geisser, 554 F.2d 698, 706 (5th Cir. 1977):
“When a plea bargain is breached, the courts must fashion a *430remedy that insures the petitioner ‘what is reasonably due in the circumstances’ . . . Generally, the bargain is ‘either specifically enforceable between the parties to the agreement or the plea is void/ ” (Citations and emphasis omitted.)
The assistant district attorney who negotiated the agreement on behalf of the state explained the plea agreement to the circuit court which accepted the defendant’s guilty plea as follows:
“These [polygraph] examinations, Your Honor, along with the investigations done by the Sheriff’s Department, indicate that Mr. Rivest at the time of the incident did not know, as I indicated before, that any harm was to be done to Mr. Jensen, he did not know that Mr. Rodriguez was armed with a knife and he intended to use this knife.
“Based on these factors, the defendant, pursuant to an agreement between myself and Mr. Tofte [defense counsel], would enter a plea to the charge of being a party to robbery. This carries a maximum penalty of a fine of not more than $10,000 or imprisonment not more than 10 years or both.
“In addition, the defendant has agreed to appear whenever requested and to give testimony against the juvenile who is charged with the actual stabbing death of Mr. Jensen.
“The reports and the police investigation and the statement of Mr. Rivest and the polygraph examination would indicate that as far as Mr. Rivest is concerned no additional charges will be brought as a result of this incident on June 5, 1978.”
The assistant district attorney said: “My main concern was: Did Mr. Rivest — or was Mr. Rivest involved in the direct stabbing of Floyd Jensen and to that extent as the statements are corroborated by the polygraph examinations given, X relied on these statements as true.”
The exchange between the circuit court which accepted the guilty plea and the defendant is as follows:
“The Court: Oh, yes. All right. Now, then you understand that there was a plea bargain. Under the circumstances, if you took the polygraph or lie detector test and passed it they would reduce it. You knew that?
“The Defendant: Yes.”
This exchange was the circuit court’s total discussion of the plea agreement other than the circuit court’s questions designed to assure the court that the state had made no promises or threats and that no one had guaranteed the defendant the sentence he would receive.
The letter states, inter alia:
“Mr. Rivest, as part of the plea negotiation, did agree to testify against Mr. Rodriguez in further proceedings. This was not a major factor in not pursuing the murder charge for the reason that Mr, Tofte had indicated to our office from the start that his client was willing to testify against Mr. Rodriguez, The only factor in not issuing the murder charge against Mr. Rivest was the verification through polygraph examination that he did not, in fact, commit the actual murder. Had Mr. Rivest failed the poly*433graph examinations, then there would have been no plea negotiation and the murder charge would have been forthcoming. It is my understanding that as long as all parties live up to the term of the plea negotiation as outlined by the record before Judge Harvey, then no murder charge against Mr. Rivest could be brought. The entire plea negotiation hinges on the physical evidence and the statements given by Mr. Rivest as confirmed by the polygraph examinations indicating that he did not, in fact, commit the actual murder of Mr. Jensen.” (Emphasis added.)
See notes 13 and 16 supra.
The first polygraph examiner reported as follows:
“There were no significant emotional disturbances indicative of deception on this subject’s records on the following listed questions :
“1. (On June 5, 1978) did you stab Floyd Jensen in the back with a hunting knife ? Answer: No
“2. Did you kill Floyd Jensen? Answer: No
“3. Did you stab Floyd Jensen with a knife? Answer: No
“4. Did you hit Floyd Jensen with that hunting knife ? Answer: No
“It is the opinion of the examiner, based on this subject’s polygraph records, that he is telling the truth on the above listed questions.”
The second polygraph examiner reported as follows:
*434“As instructed per your letter of January 10, 1979 I asked Alan Rivist [sic] the following questions:
“1. Did you stab Lloyd Johnson [sic] with the hunting knife?
“2. Did you help Eddie Rodriguez stab Lloyd Johnson [sic] ?
“3. Did you know ahead of time that Eddie Rodriguez was to stab Lloyd Johnson [sic] ?
“4. Regarding the stabbing of Lloyd Johnson [sic], did you help do it.
“Mr. Rivist [sic] stated no to all of the above questions.
“It is my opinion that Mr. Rivist [sic] was truthful when he gave the above answers to the questions asked.”
See excerpts from the record at notes 13, 14, 15 and 16. See also the testimony of the assistant district attorney at the habeas corpus hearing that he relied not on defendant’s truthfulness but on the polygraph tests to negotiate the agreement:
“Q. And did you rely, in making the agreement and in changing the charge and accepting the plea of Alan Rivest, did you rely on the statements of Alan Rivest as made to the police at the time of his apprehension and thereafter? A. I would have to say, sir, that I relied more on the two polygraph examinations as, you know, supporting those statements. I don’t think there is any way that I would have accepted the statements without the verification of the two exams.
“Q. And as you stated in your letter to Mr. Johnson of, I believe, May 30th, which has been testified to marked as an exhibit, it was his passing those two polygraphs which was the primary reason that Mr. Rivest was not charged with first degree murder; isn’t that correct? A. Correct.” (Emphasis added.)