dissenting.
¶ 36 Although there is no showing here that the testimony of Valenzuela and Saiz was false, or that they suppressed potentially *392exculpatory information in order to maintain their rights under their plea agreements, and no trial court finding of such, the majority finds a violation of due process based solely on the State’s use of consistency agreements, and reverses a first-degree murder conviction. In this, the majority errs in its application of the supreme court’s decisions in State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993), State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991), and State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999). Because Rivera failed to establish, as Fisher required, that Valenzuela and Saiz would have exculpated him were they not constrained by their plea agreements, I can find no due process violation. Accordingly, I dissent.
¶37 In Fisher, the supreme court held that, to obtain relief, the defendant had to show more than the mere use by the State of a consistency agreement with its witness:
Although [we are] satisfied that the consistency provision is improper____[t]o warrant relief, defendant must show ... [inter alia] that if the new evidence were introduced, it would probably change the verdict if a new trial were ordered____
176 Ariz. at 75, 859 P.2d at 185. Because the trial court on remand had found that Anris evidence was exculpatory and unavailable at trial because of her plea agreement, and the supreme court applies a deferential standard to such trial court findings, the court in Fisher determined that the factors necessary to afford relief had been established. Id. at 72, 75, 859 P.2d at 182, 185. It was only after Fisher established, and the trial court found, that the State’s consistency agreement with Fisher’s wife resulted in the presentation of false evidence at his trial or the suppression of materially exculpatory information that a new trial was required. Id.6 Conversely, the majority here does not even contend that there is such evidence to be presented at retrial. Valenzuela and Saiz were impeached at trial with their prior statements and the constraints imposed by the plea agreements were known to the jury, which by implication determined that these witnesses testified as they did because they were telling the truth, and not because their plea agreements caused them to testify falsely.
¶ 38 The analytical framework of the Fisher opinions was applied by the supreme court in Cook and Kayer. In each case, the court held that the record before it, which, as here, indicated that a trial witness had testified under an agreement requiring truthful testimony that was consistent with a previous statement, was inadequate to determine whether the defendant had been denied a fair trial due to the use of testimony constrained by the consistency agreement. Cook, 170 Ariz. at 58, 821 P.2d at 749; Kayer, 194 Ariz. at 430, 984 P.2d at 38. The record here, similarly, shows only that Valenzuela and Saiz testified pursuant to consistency agreements; it does not suggest that the witnesses would have testified otherwise, and favorably to Rivera, were they not so constrained.
¶ 39 Because this record does not indicate that Rivera was denied a fair trial, I would affirm.
. By contrast, in Fisher's original appeal, the supreme court, though disapproving of the consistency agreement because of its coercive effect, affirmed his conviction and death sentence because there had been no showing, and no trial court finding, that the unavailability of Ann's exculpatory evidence had in fact been effectuated by the "threat associated with ... the plea agreement.” Fisher, 141 Ariz. at 244, 686 P.2d at 767.