{ "id": 4243179, "name": "STATE of New Mexico, Plaintiff-Respondent, v. Isaac BELANGER, Defendant-Petitioner", "name_abbreviation": "State v. Belanger", "decision_date": "2009-05-12", "docket_number": "No. 30,654", "first_page": "357", "last_page": "371", "citations": [ { "type": "official", "cite": "146 N.M. 357" }, { "type": "parallel", "cite": "210 P.3d 783" }, { "type": "parallel", "cite": "2009-NMSC-025" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "20 Misc.2d 509", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1054035 ], "year": 1959, "pin_cites": [ { "page": "513-14" } ], "opinion_index": 0, "case_paths": [ "/misc2d/20/0509-01" ] }, { "cite": "342 F.2d 167", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 875055 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/f2d/342/0167-01" ] }, { "cite": "72 Fed.Appx. 306", "category": "reporters:federal", "reporter": "Fed. Appx.", "year": 2003, "pin_cites": [ { "page": "307", "parenthetical": "noting that absolute immunity extends to a prosecutor's decision \"on whether to prosecute a case\"" } ], "opinion_index": 0 }, { "cite": "118 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563429 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "240-41" }, { "page": "851-52" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0234-01" ] }, { "cite": "897 F.2d 1169", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538759 ], "pin_cites": [ { "page": "1191" } ], "opinion_index": 0, "case_paths": [ "/f2d/897/1169-01" ] }, { "cite": "1999-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257653 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0368-01" ] }, { "cite": "1997-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142257 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0611-01" ] }, { "cite": "2000-NMCA-041", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217164 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0172-01" ] }, { "cite": "317 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 304215 ], "weight": 3, "year": 1943, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/us/317/0424-01" ] }, { "cite": "703 F.2d 473", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1851424 ], "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/f2d/703/0473-01" ] }, { "cite": "161 U.S. 591", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5701603 ], "weight": 3, "year": 1896, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/us/161/0591-01" ] }, { "cite": "95 L.Ed. 1118", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1951, "opinion_index": 0 }, { "cite": "341 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1148003 ], "weight": 2, "year": 1951, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/us/341/0479-01" ] }, { "cite": "15 N.M. L.Rev. 407", "category": "journals:journal", "reporter": "N.M. L. Rev.", "year": 1985, "pin_cites": [ { "parenthetical": "charting an increasingly court-centered power over rules of procedure and pleading, but also noting, at 427, that New Mexico had, at least until the 1930's, a \"long tradition of shared responsibility for rule-making\"" } ], "opinion_index": 0 }, { "cite": "63 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776609 ], "weight": 4, "year": 1957, "pin_cites": [ { "page": "161-62", "parenthetical": "noting that courts have inherent power to hold non-compliant \"witnesses in contempt" }, { "page": "227", "parenthetical": "noting that courts have inherent power to hold non-compliant \"witnesses in contempt" }, { "page": "162" }, { "page": "227", "parenthetical": "noting and discussing the contempt power of courts" } ], "opinion_index": 0, "case_paths": [ "/nm/63/0156-01" ] }, { "cite": "2004-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428000 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/135/0329-01" ] }, { "cite": "2009-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243851 ], "weight": 6, "year": 2009, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "1140" }, { "page": "\u00b6\u00b6 25-26" }, { "page": "1140" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0155-01" ] }, { "cite": "37 N.M. 30", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575419 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "33", "parenthetical": "same" }, { "page": "938", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nm/37/0030-01" ] }, { "cite": "85 S.Ct. 1136", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 1525245, 1525277 ], "year": 1965, "pin_cites": [ { "parenthetical": "Congress has \"power to make rules governing the practice and pleading\" in federal courts" } ], "opinion_index": 0, "case_paths": [ "/us/380/0518-01", "/us/380/0460-01" ] }, { "cite": "380 U.S. 460", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525277 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "472", "parenthetical": "Congress has \"power to make rules governing the practice and pleading\" in federal courts" }, { "parenthetical": "Congress has \"power to make rules governing the practice and pleading\" in federal courts" } ], "opinion_index": 0, "case_paths": [ "/us/380/0460-01" ] }, { "cite": "444 U.S. 252", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11305972 ], "weight": 5, "year": 1980, "pin_cites": [ { "page": "265" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/us/444/0252-01" ] }, { "cite": "488 U.S. 361", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494660 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "385-88", "parenthetical": "explaining Congress's power to regulate court procedure, or to delegate that power" }, { "parenthetical": "explaining Congress's power to regulate court procedure, or to delegate that power" }, { "parenthetical": "explaining Congress's power to regulate court procedure, or to delegate that power" } ], "opinion_index": 0, "case_paths": [ "/us/488/0361-01" ] }, { "cite": "73 Temp. L.Rev. 171", "category": "journals:journal", "reporter": "Temp. L. Rev.", "year": 2000, "opinion_index": 0 }, { "cite": "66 Geo. L.J., 51", "category": "journals:journal", "reporter": "Geo. L.J.", "year": 1977, "opinion_index": 0 }, { "cite": "91 Harv. L.Rev. 1266", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1978, "opinion_index": 0 }, { "cite": "73 Mich. L.Rev. 71", "category": "journals:journal", "reporter": "Mich. L. Rev.", "year": 1974, "pin_cites": [ { "page": "166-70" } ], "opinion_index": 0 }, { "cite": "447 F.Supp. 779", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3994932 ], "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/f-supp/447/0779-01" ] }, { "cite": "494 F.2d 955", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3680786, 193046 ], "opinion_index": 0, "case_paths": [ "/us-app-dc/161/0036-01", "/f2d/494/0955-01" ] }, { "cite": "539 F.2d 753", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1039761, 3520707 ], "year": 1976, "pin_cites": [ { "page": "754-55", "parenthetical": "Bazelon, C.J., concurring in denial of rehearing en banc" } ], "opinion_index": 0, "case_paths": [ "/f2d/539/0753-01", "/us-app-dc/176/0274-01" ] }, { "cite": "782 P.2d 608", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1989, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "264 Cal.Rptr. 367", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1989, "opinion_index": 0 }, { "cite": "49 Cal.3d 957", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1974344 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/cal-3d/49/0957-01" ] }, { "cite": "154 Vt. 59", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4800691 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "1251" } ], "opinion_index": 0, "case_paths": [ "/vt/154/0059-01" ] }, { "cite": "708 P.2d 1354", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10427171 ], "pin_cites": [ { "page": "1358" } ], "opinion_index": 0, "case_paths": [ "/p2d/708/1354-01" ] }, { "cite": "135 Ariz. 404", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 737478 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "in banc" }, { "page": "1125", "parenthetical": "in banc" } ], "opinion_index": 0, "case_paths": [ "/ariz/135/0404-01" ] }, { "cite": "587 F.2d 589", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 837035 ], "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/f2d/587/0589-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "394", "parenthetical": "finding it \"intolerable that one constitutional right should have to be surrendered in order to assert another,\" and holding that testimony made by a defendant in a Fourth Amendment suppression hearing cannot be used at trial unless he fails to object" }, { "parenthetical": "finding it \"intolerable that one constitutional right should have to be surrendered in order to assert another,\" and holding that testimony made by a defendant in a Fourth Amendment suppression hearing cannot be used at trial unless he fails to object" }, { "parenthetical": "finding it \"intolerable that one constitutional right should have to be surrendered in order to assert another,\" and holding that testimony made by a defendant in a Fourth Amendment suppression hearing cannot be used at trial unless he fails to object" } ], "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "528 F.2d 1079", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1079709 ], "pin_cites": [ { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/f2d/528/1079-01" ] }, { "cite": "542 F.2d 711", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1029114 ], "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/f2d/542/0711-01" ] }, { "cite": "616 F.2d 960", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1392033 ], "pin_cites": [ { "page": "962-63" } ], "opinion_index": 0, "case_paths": [ "/f2d/616/0960-01" ] }, { "cite": "589 F.2d 1191", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 827204 ], "pin_cites": [ { "page": "1203" } ], "opinion_index": 0, "case_paths": [ "/f2d/589/1191-01" ] }, { "cite": "99 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584584 ], "weight": 2, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0109-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "110 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716970 ], "weight": 4, "pin_cites": [ { "page": "415" }, { "page": "1111" }, { "page": "415" }, { "page": "1111" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0412-01" ] }, { "cite": "516 F.2d 986", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1132729 ], "weight": 2, "pin_cites": [ { "page": "988" }, { "page": "988" } ], "opinion_index": 0, "case_paths": [ "/f2d/516/0986-01" ] }, { "cite": "18 U.S.C. \u00a7 6003", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "623 F.2d 769", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1277810 ], "weight": 3, "pin_cites": [ { "page": "777" }, { "page": "776" }, { "page": "773-74" } ], "opinion_index": 0, "case_paths": [ "/f2d/623/0769-01" ] }, { "cite": "615 F.2d 964", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1396340 ], "opinion_index": 0, "case_paths": [ "/f2d/615/0964-01" ] }, { "cite": "18 U.S.C. \u00a7\u00a7 6001-6005", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "95 N.M. 317", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575565 ], "weight": 2, "pin_cites": [ { "page": "320" }, { "page": "1133" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0317-01" ] }, { "cite": "91 N.M. 745", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571008 ], "weight": 4, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0745-01" ] }, { "cite": "110 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 717012 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "39", "parenthetical": "Montgomery, J., dissenting" }, { "page": "793", "parenthetical": "Montgomery, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0034-01" ] }, { "cite": "2005-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2549854 ], "weight": 15, "year": 1990, "pin_cites": [ { "page": "\u00b6\u00b6 5-9", "parenthetical": "Montgomery, J., dissenting" }, { "parenthetical": "Montgomery, J., dissenting" }, { "parenthetical": "Montgomery, J., dissenting" }, { "page": "\u00b6 5" }, { "page": "\u00b6 34" }, { "page": "\u00b6 5" }, { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0398-01" ] }, { "cite": "88 N.M. 244", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841447 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "246-47", "parenthetical": "stating that the quo warranto procedural requirement is beyond the power of the legislature" }, { "page": "1008-09", "parenthetical": "stating that the quo warranto procedural requirement is beyond the power of the legislature" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0244-01" ] }, { "cite": "89 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863938 ], "weight": 6, "year": 1976, "pin_cites": [ { "page": "310", "parenthetical": "holding that rules governing testimonial privileges are solely within the court's power" }, { "page": "1357", "parenthetical": "holding that rules governing testimonial privileges are solely within the court's power" }, { "page": "309-12" }, { "page": "1356-59", "parenthetical": "stating that courts have power over certain privileges as matters of evidence" }, { "page": "312" }, { "page": "1359" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0307-01" ] }, { "cite": "91 N.M. 624", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571196 ], "weight": 2, "pin_cites": [ { "page": "627" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0624-01" ] }, { "cite": "1997-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18637 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 39" }, { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0055-01" ] }, { "cite": "105 N.M. 82", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598930 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "83" }, { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0082-01" ] }, { "cite": "1998-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827374 ], "weight": 24, "pin_cites": [ { "page": "\u00b6 63" }, { "page": "\u00b6 57" }, { "page": "\u00b6 57" }, { "page": "\u00b660" }, { "page": "\u00b6 61" }, { "page": "\u00b6 61" }, { "page": "\u00b6 59" }, { "page": "\u00b6\u00b6 5-10", "parenthetical": "discussing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)" }, { "parenthetical": "discussing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)" }, { "parenthetical": "discussing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0338-01" ] }, { "cite": "53 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580760 ], "weight": 4, "year": 1949, "pin_cites": [ { "page": "518" }, { "page": "427" }, { "page": "517-18" }, { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nm/53/0514-01" ] }, { "cite": "101 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586449 ], "weight": 12, "year": 1983, "pin_cites": [ { "page": "286" }, { "page": "712" }, { "page": "286-87" }, { "page": "712-13" }, { "page": "286-87" }, { "page": "712-13" }, { "page": "286-87" }, { "page": "712-13" }, { "page": "287" }, { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0282-01" ] }, { "cite": "613 F.2d 38", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1406519 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/f2d/613/0038-01" ] }, { "cite": "400 U.S. 548", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12048317 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "569", "parenthetical": "Brennan, J., dissenting" }, { "parenthetical": "Brennan, J., dissenting" }, { "parenthetical": "Brennan, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/400/0548-01" ] }, { "cite": "406 U.S. 441", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171486 ], "weight": 17, "year": 1972, "pin_cites": [ { "page": "453", "parenthetical": "holding that \"immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege\"" }, { "parenthetical": "holding that \"immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege\"" }, { "parenthetical": "holding that \"immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege\"" }, { "page": "453" }, { "page": "460" }, { "page": "443" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/us/406/0441-01" ] }, { "cite": "117 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552727 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "145", "parenthetical": "applying de novo standard to \"threshold constitutional issues\"" }, { "page": "107", "parenthetical": "applying de novo standard to \"threshold constitutional issues\"" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0141-01" ] }, { "cite": "2006-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544705 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0466-01" ] }, { "cite": "172 P.3d 1286", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "143 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2007-NMCERT-010", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "98 N.M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582450 ], "weight": 14, "pin_cites": [ { "page": "432-33" }, { "page": "500-01" }, { "page": "433-34" }, { "page": "434" }, { "page": "502" }, { "page": "433" }, { "page": "501" }, { "page": "433" }, { "page": "501" }, { "page": "431" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0428-01" ] }, { "cite": "2007-NMCA-143", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3693052 ], "weight": 6, "pin_cites": [ { "page": "\u00b66" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0751-01" ] }, { "cite": "103 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711409 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "286" }, { "page": "1137" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0282-01" ] }, { "cite": "2008-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001971 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "\u00b6\u00b6 50-51" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0663-01" ] }, { "cite": "739 F.2d 505", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 654589 ], "year": 1984, "pin_cites": [ { "page": "508-09" } ], "opinion_index": 0, "case_paths": [ "/f2d/739/0505-01" ] }, { "cite": "400 U.S. 74", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046557 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0074-01" ] }, { "cite": "82 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332351 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "529", "parenthetical": "discussing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)" }, { "page": "371", "parenthetical": "discussing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0526-01" ] }, { "cite": "484 F.2d 1215", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 238422 ], "pin_cites": [ { "page": "1222" } ], "opinion_index": 0, "case_paths": [ "/f2d/484/1215-01" ] }, { "cite": "89 N.M. 325", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867096 ], "weight": 2, "pin_cites": [ { "page": "327" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0325-01" ] }, { "cite": "688 F.2d 726", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1465373 ], "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/f2d/688/0726-01" ] }, { "cite": "1998-NMCA-024", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17456 ], "weight": 3, "pin_cites": [ { "page": "\u00b67" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0716-01" ] }, { "cite": "920 F.2d 940", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10546297, 3486726 ], "opinion_index": 0, "case_paths": [ "/f2d/920/0940-01", "/us-app-dc/287/0146-01" ] }, { "cite": "910 F.2d 843", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539146, 3483255 ], "pin_cites": [ { "page": "862" } ], "opinion_index": 0, "case_paths": [ "/f2d/910/0843-01", "/us-app-dc/285/0343-01" ] }, { "cite": "118 N.M. 572", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563525 ], "weight": 8, "year": 1994, "pin_cites": [ { "page": "577", "parenthetical": "stating that in order to carry its burden, the State must present evidence, not just argument, and must make a preponderance showing" }, { "page": "1274", "parenthetical": "stating that in order to carry its burden, the State must present evidence, not just argument, and must make a preponderance showing" }, { "page": "580" }, { "page": "1277", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "577-78" }, { "page": "1274-75" }, { "page": "574" }, { "page": "1271" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0572-01" ] }, { "cite": "112 S.W. 1070", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1908, "opinion_index": 0 }, { "cite": "54 Tex.Crim. 369", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 182577 ], "year": 1908, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/tex-crim/54/0369-01" ] }, { "cite": "191 N.Y.S.2d 238", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1959, "opinion_index": 0 } ], "analysis": { "cardinality": 2035, "char_count": 54792, "ocr_confidence": 0.68, "pagerank": { "raw": 2.1756554267627302e-07, "percentile": 0.771721633191742 }, "sha256": "e959ea1927550c7293fbe643ac8b92e04afd4a466446b133b75f9b39e53f680b", "simhash": "1:1a52451667b7c15d", "word_count": 8821 }, "last_updated": "2023-07-14T18:28:31.770781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and CHARLES W. DANIELS, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Respondent, v. Isaac BELANGER, Defendant-Petitioner." ], "opinions": [ { "text": "OPINION\nBOSSON, Justice.\n{1} More than twenty-five years ago, this Court\u2019s Rules of Criminal Procedure Committee (\u201cthe Committee\u201d) opined that use- and-derivative-use immunity for witnesses (\u201cuse immunity\u201d) should be available at the request of either the prosecution or the accused. Although that view had some limited support in federal case law, ultimately it did not prevail in our state jurisprudence. Since then, this Court has embraced the view that use immunity is available only at the behest of the prosecution.\n{2} As will be discussed at length in this opinion, the case before us makes clear that there are times, however limited, when a trial court must exercise its own review and decide whether to grant use immunity to a defense witness, even without the concurrence of the prosecution. The legitimate needs of the prosecution can and must be balanced against the potential for erosion of important constitutional rights of the accused. In coming to this conclusion, we rely on New Mexico law, not federal precedents, and we reluctantly overrule some of our precedent to the extent those cases fail to recognize the critical distinction between our state\u2019s jurisprudence and the federal rules. We depart from our precedents cautiously, and only after concluding that our earlier opinions were either poorly reasoned, based on an unwarranted reliance on federal law, or both. Based on this departure from precedent, we reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion.\nBACKGROUND\n{3} A Bernalillo County grand jury indicted Isaac Belanger (\u201cDefendant\u201d) on August 31, 2004, on one count of criminal sexual penetration of a minor (\u201cCSPM\u201d), two counts of attempted CSPM, three counts of battery, one count of kidnapping, and two counts of bribery of a witness. Defendant\u2019s niece, S.S., accused him of pinning her against a bathroom wall, forcing her to kiss him, putting his hand down her pants and penetrating her vagina with his finger. She was 12-years old at the time, and Defendant was 28. The incident allegedly took place at the house of Defendant\u2019s father (the girl\u2019s grandfather), after an argument about who was going to use the phone. Defendant has denied any wrongdoing. Defendant asserts, and the State does not dispute, that there are no other known witnesses to the alleged incident, and no physical evidence implicating Defendant. Thus, the credibility of S.S., as the sole eye-witness, would appear to be pivotal at trial.\n{4} In pre-trial proceedings, Defendant attempted to interview another juvenile, D.P., against whom S.S. had leveled similar sexually related charges. The incident between 5.5. and D.P. occurred just weeks before the incident involving Defendant. Defendant claims that prosecutors dropped the charges against D.P. after it became clear that S.S. had fabricated her claims against D.P. Thus, Defendant may try to use D.P. to attack 5.5.\u2019s credibility at trial. In response, the State denies that S.S. fabricated her claims against D.P., although the State acknowledges that the charges against D.P. were dismissed, and the State has no intention of bringing new charges against him.\n{5} In response to Defendant\u2019s demands for an interview, D.P., acting on the advice of counsel, invoked his Fifth Amendment privilege against self-incrimination and refused to talk with Defendant. Defendant attempted to overcome D.P.\u2019s Fifth Amendment assertion by asking the prosecutor to apply to the court for use immunity so that D.P. could testify without fear of being prosecuted based on what he said at trial or during the interview. The State refused to request immunity for D.P.\n{6} Defendant applied to the district court for relief. Based on then-existing law, the district court properly concluded that it had no power to grant immunity unless the prosecution applied for it. See Rule 5-116 NMRA (limiting immunity to application of the prosecutor). Nonetheless, after the prosecution made clear it would not apply for immunity, the district court advised the State that the court would dismiss the charges if the prosecution did not apply for immunity within one week. Before the deadline passed, the State again informed the court that it would not apply for immunity.\n{7} The State appears to have concluded that D.P. had no valid Fifth Amendment right because the charges against him had been dismissed and the likelihood of further charges being lodged were \u201cso remote as to be inconsequential.\u201d Because D.P. was \u201cno longer exposed to any jeopardy from the events that formed the basis of the previous prosecution,\u201d the State regarded immunity as inappropriate. The district court disagreed, concluding that D.P.\u2019s Fifth Amendment privilege conflicted irrevocably with Defendant\u2019s Sixth and Fourteenth Amendment rights to confrontation and due process of law. Because the State would not request immunity for D.P., the court dismissed the criminal case against Defendant. The State appealed and the Court of Appeals reversed in a published opinion, State v. Belanger, 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530. The Court determined that the trial court\u2019s dismissal conflicted with State v. Sanchez, 98 N.M. 428, 432-33, 649 P.2d 496, 500-01 (Ct.App.1982), and concluded that, except in cases of prosecutorial misconduct, courts have \u201cno power to ... fashion witness use immunity under the guise of due process.\u201d Belanger, 2007-NMCA-143, \u00b66, 142 N.M. 751, 170 P.3d 530 (internal quotation marks and citation omitted). Defendant petitioned for review, and we granted certiorari. 2007-NMCERT-010, 143 N.M. 74, 172 P.3d 1286. We reverse.\nSTANDARD OP REVIEW\n{8} This appeal implicates important constitutional rights, including the Fifth Amendment right against self-incrimination, the Sixth Amendment rights to confront witnesses and to receive compulsory process, and the Fourteenth Amendment right to due process of law, including the right to a fair trial, and therefore our review is de novo. See State v. Brown, 2006-NMSC-023, \u00b6 8, 139 N.M. 466,134 P.3d 753 (applying de novo standard where \u201cimportant constitutional rights\u201d are implicated (citing State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994) (applying de novo standard to \u201cthreshold constitutional issues\u201d))).\nDISCUSSION\nWitness Immunity\n{9} Defendant asserts that D.P.\u2019s testimony is essential to his defense. He argues that without a grant of use immunity to D.P., Defendant\u2019s ability to confront his accuser and to obtain compulsory process, protected by the Sixth Amendment to the United States Constitution as well as Article II, Section 14 of the New Mexico Constitution, is compromised. Without these rights, Defendant asserts, his broader right to a fair trial, guaranteed by the Fourteenth Amendment to the United States Constitution and by Article II, Section 18 of the New Mexico Constitution, is imperiled. Use immunity would solve this problem, according to Defendant, because it would require D.P. to testify, thus meeting Defendant\u2019s need, while protecting D.P.\u2019s Fifth Amendment rights because nothing said by D.P. could later be used against him. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that \u201cimmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege\u201d).\n{10} The State, for its part, asserts that it had no obligation to apply for immunity for D.P. and that it was not obliged to justify or explain its reason. In essence, the State takes the position that the case must proceed to trial without D.P.\u2019s testimony, regardless of what D.P. may or may not have to say about S.S. and her credibility.\nUse Immunity versus Transactional Immunity\n{11} We first discuss the important difference between use immunity and transactional immunity' \u2014 a distinction that is critical to understanding the basis for our opinion, as well as the shortcomings we perceive in some of our earlier opinions. Transactional immunity involves a promise by prosecutors that a witness will not be prosecuted for crimes related to the events about which the witness testifies. See Piccirillo v. New York, 400 U.S. 548, 569, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971) (Brennan, J., dissenting). In contrast, under a grant of use immunity, the prosecution promises only to refrain from using the testimony in any future prosecution, as well as any evidence derived from the protected testimony. Kastigar, 406 U.S. at 453, 92 S.Ct. 1653. Under use immunity, the prosecution may still proceed with charges against the witness so long as it does not use or rely on the witness\u2019s testimony or its fruits. Transactional immunity, on the other hand, affords the witness a much broader immunity related to the entire transaction and not just the witness\u2019s testimony.\n{12} Transactional immunity is broader than the Fifth Amendment privilege. Id. Use immunity, by contrast, is coextensive with the Fifth Amendment privilege. Id. With use immunity, both the prosecution and the witness are left in essentially the same position as if the witness had retained his Fifth Amendment privilege and never testified. The witness is not exposed to criminal liability for testimony given, and the prosecution loses little with respect to its ability to prosecute. All the State surrenders is the ability to use testimony which it otherwise never would have had. See Sanchez, 98 N.M. at 433-34, 649 P.2d at 501-02 (citing Kastigar, 406 U.S. 441, 92 S.Ct. 1653, for proposition that use immunity \u201cleaves the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a grant of immunity\u201d). The State, if it wishes to prosecute, retains the ability to use other, independently obtained evidence such as material it already had, or material it developed independently of the witness\u2019s testimony. See United States v. Quatermain, 613 F.2d 38, 40 (3d Cir.1980); see also Kastigar, 406 U.S. at 460, 92 S.Ct. 1653 (noting that after a grant of use immunity, the prosecution has \u201cthe affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony\u201d).\n{13} Our older cases occasionally blurred the distinction between use immunity and transactional immunity, and sometimes spoke in overly broad terms by concluding that, absent a constitutional provision or statute, courts could not grant any kind of immunity without prosecutorial consent. See State v. Cheadle, 101 N.M. 282, 286, 681 P.2d 708, 712 (1983); Apodaca v. Viramontes, 53 N.M. 514, 518, 212 P.2d 425, 427 (1949). More recent New Mexico jurisprudence makes clear that only transactional immunity is a legislative prerogative, because it amounts to a decision by the people to exclude an entire class of individuals from application of the state\u2019s criminal laws. See State v. Brown, 1998-NMSC-037, \u00b6 63, 126 N.M. 338, 969 P.2d 313 (referring to the \u201clegislative power of amnesty\u201d). Granting use immunity, which is not a form of \u201camnesty,\u201d is an inherent function of the judiciary under New Mexico law and is governed by court rule. Id. \u00b6 61 (\u201cTherefore, to the extent that use immunity serves to compel testimony in a judicial proceeding and serves to establish an evidentiary safeguard to protect the right against self-incrimination, we conclude that it is within our power of \u2018superintending control over all inferior courts\u2019 of New Mexico to enact rules governing this type of [use] immunity.\u201d).\nThe New Mexico Rule on Use Immunity\n{14} Unlike the federal use immunity rule, which is rooted in Congressional legislation, use immunity in New Mexico is governed by the Rules of Evidence, Rule 11-412 NMRA, the Rules of Criminal Procedure, Rule 5-116, and to a limited extent by statute, NMSA 1978, \u00a7 31-6-15 (1979). The only applicable and extant statute, Section 31-6-15, applies only to grand jury proceedings and not to testimony at trial. Brown, 1998-NMSC-037, \u00b6 57, 126 N.M. 338, 969 P.2d 313; State v. Summerall, 105 N.M. 82, 83, 728 P.2d 833, 834 (1986). Outside the grand jury context, court rule, and not statute, governs a court\u2019s grant of use immunity to witnesses. See Brown, 1998-NMSC-037, \u00b6 57, 126 N.M. 338, 969 P.2d 313.\n{15} Rule 11-412 of our Rules of Evidence provides that evidence obtained under an immunity order, as well as any evidence derived from such evidence, may not be used against the person protected by that order with the exception of a charge of perjury based on false testimony. This is use immunity. Rule 5-116 of our Rules of Criminal Procedure provides that the court may issue a written order of immunity \u201cupon the written application of the prosecuting attorney.\u201d Our cases have interpreted this to mean that immunity is available only upon application by the prosecutor. See Cheadle, 101 N.M. at 286-87, 681 P.2d at 712-13; State v. Baca, 1997-NMSC-045, \u00b6 37, 124 N.M. 55, 946 P.2d 1066; Sanchez, 98 N.M. at 434, 649 P.2d at 502.\n{16} Some older New Mexico opinions appear to have assumed, incorrectly, that the immunity rules (as opposed to the statute) derived their authority from a legislative grant of power to the courts. See, e.g., Viramontes, 53 N.M. at 517-18, 212 P.2d at 427; State v. Thoreen, 91 N.M. 624, 627, 578 P.2d 325, 328 (Ct.App.1978). However, more recent and better reasoned authority makes clear that while transactional immunity is a legislative prerogative to be defined by statute, the grant of use immunity is a power which \u201cinhere[s] in the judiciary.\u201d Brown, 1998-NMSC-037, \u00b660, 126 N.M. 338, 969 P.2d 313. In the case before this Court, we consider not transactional immunity, but use immunity, which this Court defines in the exercise of its inherent judicial authority. Until today, this Court has limited use immunity to situations initiated by the \u201capplication of the prosecuting attorney.\u201d Id. \u00b6 64.\n{17} This Court\u2019s inherent rule-making power permits us to create rules of criminal procedure, evidence and other matters that fall within the realm of pleading, practice and procedure. See generally Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 310, 551 P.2d 1354, 1357 (1976) (holding that rules governing testimonial privileges are solely within the court\u2019s power); State ex rel. Anaya v. McBnde, 88 N.M. 244, 246-47, 539 P.2d 1006, 1008-09 (1975) (stating that the quo warranto procedural requirement is beyond the power of the legislature). More recent authority suggests that although the Court has \u201cultimate rule-making authority,\u201d that power is not necessarily exclusive, and may co-exist with harmonious legislative enactments. See Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, \u00b6\u00b6 5-9, 138 N.M. 398, 120 P.3d 820; Maples v. State, 110 N.M. 34, 39, 791 P.2d 788, 793 (1990) (Montgomery, J., dissenting). This power over procedural and evidentiary issues ultimately stems from the constitutional grant to this Court of \u201csuperintending control over all inferior courts.\u201d N.M. Const, art. VI, \u00a7 3; see also Brown, 1998-NMSC-037, \u00b6 61, 126 N.M. 338, 969 P.2d 313 (same).\n{18} The evolution of the criminal procedure rule on immunity, Rule 5-116, demonstrates the judiciary\u2019s authority to change it. In fact, this Court has frequently exercised its inherent rule-making power to alter the rules pertaining to immunity. For example, Rule 58, an earlier version of criminal procedure Rule 5-116, provided for transactional immunity. See Rule 5-116, Committee commentary; Sanchez, 98 N.M. at 433, 649 P.2d at 501. Without any authorizing legislation, the rule required the State to \u201cforego the prosecution of the person for criminal conduct about which he is questioned and testifies.\u201d Rule 5-116, Compiler\u2019s Annotations (citing Campos v. State, 91 N.M. 745, 580 P.2d 966 (1978)).\n{19} The Committee, exercising the power of this Court, amended the rule in 1979 to remove the reference to transactional immunity, and it has been a \u201cuse immunity\u201d rule ever since. Later, the Committee, again acting under the authority of this Court and the Court of Appeals opinion in Sanchez, amended the commentary to specify that only the prosecution could apply for use immunity. See Rule 5-116, Committee commentary. The commentary had earlier posited that either the prosecution or the defense could apply for immunity. Id.\n{20} Less than three months before the Court of Appeals ruling in Sanchez, the Committee commentary asserted that courts could unilaterally grant witness immunity, an assertion that in some ways resembles the rule we announce today. Rule 58 Final Draft, Committee commentary, 4/1982. The commentary noted that \u201cin order to assure fundamental fairness,\u201d a defendant \u201cmay be entitled to a witness immunity order under the Fifth and Sixth Amendments of the United States Constitution.\u201d Id. This assertion followed a similar claim, in dictum, by the Court of Appeals prior to Sanchez, in State v. McGee, that \u201c[a court order] of use immunity may have been an appropriate way of accommodating the competing interests of the State and the defendant.\u201d 95 N.M. 317, 320, 621 P.2d 1129, 1133 (Ct.App.1980).\n{21} What we learn from this history is that use immunity in New Mexico courts has not remained static. It has evolved over the years as an exercise of inherent judicial authority over our state courts and, notably, in the absence of any contrary legislative expression pertaining to trials. We also understand that both courts and our rules committees have considered and discussed a rule similar to the one we announce today which broadens the ability of either party to request use immunity and compelled testimony for a witness. That approach was ultimately rejected in favor of the federal approach, which, as we will soon discuss, is not at all parallel to our own state rules.\nThe Federal Rule on Use Immunity\n{22} Congress enacted the federal \u201cuse immunity\u201d statute, 18 U.S.C. \u00a7\u00a7 6001-6005, in 1970, and the United States Supreme Court upheld its constitutionality two years later, in Kastigar, 406 U.S. 441, 92 S.Ct. 1653. It offers a study in contrast with the New Mexico rule. Unlike the New Mexico rule, the federal rule on witness immunity is purely statutory \u2014 a grant of authority from Congress to prosecutors. With the exception of Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), which located an inherent judicial power outside the statute, every federal court of appeals to squarely consider the issue has held that federal courts may not grant defense-witness use immunity \u2014 certainly not under the federal statute, and not outside the statute\u2019s reach either, although at least one case recognizes the hypothetical possibility of such an extra-statute grant. See, e.g., United States v. Turkish, 623 F.2d 769, 777 (2d Cir.1980).\n{23} The federal statute provides that federal district courts \u201cshall issue\u201d an order providing for use immunity \u201cupon the request of the United States attorney.\u201d 18 U.S.C. \u00a7 6003(a). As the majority of courts have interpreted the statute, federal district courts play little more than a ministerial role in administering use immunity under 18 U.S.C. \u00a7\u00a7 6001-6005. See, e.g., Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir.1975) (\u201cThe function of the district court is limited to determining whether the government\u2019s request for immunity complies with the statutory procedure.\u201d). There is one widely recognized exception.\n{24} Where a court finds prosecutorial misconduct, it may force the prosecution to grant immunity or dismiss the ease. New Mexico has recognized this prosecutorial misconduct exception as it applies to our own rules, and our courts may step in and grant witness immunity independent of the prosecution where prosecutors \u201cdeliberately intend to disrupt the fact-finding process.\u201d State v. Crislip, 110 N.M. 412, 415, 796 P.2d 1108, 1111 (Ct.App.1990), overruled on other grounds by Santillanes v. State, 115 N.M. 215, 225 & n. 7, 849 P.2d 358, 368 & n. 7 (1993); see also Baca, 1997-NMSC-045, \u00b6 39, 124 N.M. 55, 946 P.2d 1066 (\u201cbarring a clear showing of prosecutorial misconduct, use immunity can only be sought by the prosecution\u201d).\n{25} This exception is rarely applied, however, because prosecutorial misconduct of this sort is so difficult for defendants to prove. See State v. Velasquez, 99 N.M. 109, 112, 654 P.2d 562 (Ct.App.1982) (noting that \u201cthe defendant has a difficult burden to show prejudice\u201d in making out a case of prosecutorial misconduct in the grand jury context). Furthermore, some federal courts have held that under the federal immunity statute, they lack the power even to review prosecutorial immunity decisions about grants of immunity. See, e.g., United States v. Herman, 589 F.2d 1191, 1203 (3d Cir.1978). We find no instance in New Mexico where a court has granted use immunity on its own because of prosecutorial misconduct.\n{26} The district court in this case found no prosecutorial misconduct. We disturb neither that finding nor our case law as to the prosecutorial misconduct exception. We highlight it only to show that as a practical matter it leaves little, if any, role for courts in the federal system, and under the majority rule in the state systems.\n{27} Given that the federal rule is legislatively based, it is not surprising that an overwhelming majority of federal courts have held that courts have no inherent power to grant use immunity to a defense witness without the consent of the prosecution and in the absence of prosecutorial misconduct. See, e.g., United States v. Lenz, 616 F.2d 960, 962-63 (6th Cir.1980) (\u2018While use immunity for defense witnesses may well be desirable, its proponents must address their arguments to Congress, not the courts.\u201d (Citation omitted.)); United States v. Smith, 542 F.2d 711, 715 (7th Cir.1976); United States v. Alessio, 528 F.2d 1079, 1081 (9th Cir.1976); Thompson, 516 F.2d at 988.\n{28} Although it is clear that federal courts have rejected inherent judicial authority to grant defense witness immunity, the United States Supreme Court, as well as several federal appeals courts, have recognized inherent judicial power to grant immunity in other contexts, in order to protect constitutional rights. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (finding it \u201cintolerable that one constitutional right should have to be surrendered in order to assert another,\u201d and holding that testimony made by a defendant in a Fourth Amendment suppression hearing cannot be used at trial unless he fails to object); In re Grand Jury Investigation, 587 F.2d 589, 597 (3d Cir.1978) (recognizing use immunity for testimony predicate to Speech and Debate Clause).\n{29} State courts also appear to have uniformly rejected judicially imposed defense-witness immunity in the absence of prosecutorial misconduct. See, e.g., State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, 1125 (1983) (in banc); Harding v. People, 708 P.2d 1354, 1358 (Colo.1985) (en banc); State v. Roberts, 154 Vt. 59, 574 A.2d 1248, 1251 (1990). Some states recognize the hypothetical possibility that a case could arise in which judicially imposed immunity would be necessary. See, e.g., People v. Hunter, 49 Cal.3d 957, 264 Cal.Rptr. 367, 782 P.2d 608, 616 (1989).\n{30} Over the years, periodic expressions of support have surfaced for judicially ordered use immunity. See, e.g., United States v. Gaither, 539 F.2d 753, 754-55 (D.C.Cir. 1976) (Bazelon, C.J., concurring in denial of rehearing en banc); United States v. Leonard, 494 F.2d 955, 985 n. 79 (D.C.Cir.1974) (Bazelon, C.J., concurring in part and dissenting in part); United States v. La Duca, 447 F.Supp. 779, 786 (D.N.J.1978) (\u201cThe availability of use immunity can protect the government\u2019s interest in potential future prosecution of a witness while also satisfying the interest of the criminal defendant in the presentation of testimony which can exculpate him.\u201d). The concept has also garnered some enthusiastic support in academia. See generally Peter Westen, The Compulsory Process Clause, 73 Mich. L.Rev. 71, 166-70 (1974); Barbara A. Reeves, Notes, A Re examination of Defense Witness Immunity: A New Use for Kastigar, 10 Harv. J. Legis. 74 (1972); Notes, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv. L.Rev. 1266 (1978); Note, Separation of Powers and Defense Witness Immunity, 66 Geo. L.J., 51 (1977); Leonard N. Sosnov, Separation of Powers Shell Game: The Federal Witness Immunity Act, 73 Temp. L.Rev. 171 (2000).\nThe New Mexico Rule-Making Authority Differs from the Federal Model\n{31} Under the federal Constitution, Congress exercises considerable control over rules and procedure of the federal courts, and where the judicial branch does have its own power to promulgate rules, it is largely on authority delegated by Congress. See Mistretta v. United States, 488 U.S. 361, 385-88, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (explaining Congress\u2019s power to regulate court procedure, or to delegate that power). By contrast, the New Mexico Constitution has always afforded the judiciary virtually independent control over inferior tribunals, as well as court rules. Under the New Mexico Constitution, the New Mexico Legislature has no power akin to the constitutionally mandated power of Congress to \u201cconstitute Tribunals inferior to the supreme Court,\u201d U.S. Const, art. I, \u00a7 8, el. 9. This power of Congress to create the federal court system, supplemented by the authority granted by the Necessary and Proper Clause, U.S. Const, art. I, \u00a7 8, cl. 18, has been understood to give Congress the power \u201cto prescribe rules of evidence and standards of proof in the federal courts.\u201d Vance v. Terrazas, 444 U.S. 252, 265, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980); see also id. at 266, 100 S.Ct. 540 (noting that such power is \u201cundoubted and has been frequently noted and sustained\u201d); Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (Congress has \u201cpower to make rules governing the practice and pleading\u201d in federal courts). By contrast, the New Mexico Constitution itself creates the courts inferior to this Court, while leaving the Legislature residual power to create \u201cother courts inferior to the district courts as may be established by law from time to time in any district, county or municipality of the state.\u201d N.M. Const, art. VI, \u00a7 1; see also Stout v. City of Clovis, 37 N.M. 30, 33, 16 P.2d 936, 938 (1932) (same).\n{32} It is clear, then, that this Court exerts an authority over its own courts, and therefore its own rules, that federal courts lack. But even if that were not true, we could comfortably conclude that the federal immunity rule is quite unlike our own rule. The federal immunity statute, which is the first and last word on federal immunity, explicitly grants the immunity power to prosecutors. Our statute does not, and does not even apply beyond the grand jury. The portion of our immunity law which does specify prosecutorial authority is Rule 5-116 of our Rules Criminal Procedure, which, as we have already noted, is within our inherent authority to change. Albuquerque Rape Crisis Ctr., 2005-NMSC-032, \u00b6 5, 138 N.M. 398, 120 P.3d 820. We have amended rules in the past, as well as jury instructions, by court opinion. See State v. Pieri, 2009-NMSC-019, \u00b6 25, 146 N.M. 155, 207 P.3d 1132, 1140 (2009); State v. Balderama, 2004-NMSC-008, \u00b6 38 n. 4, 135 N.M. 329, 88 P.3d 845 (amending a portion of the Uniform Jury Instructions).\n{33} Our conclusion that this Court controls use immunity rules flows naturally from the well-accepted proposition that New Mexico courts control issues of evidence and testimony \u2014 a proposition which is far less true in the federal system. In granting use immunity, courts are acting upon their inherent power to control their courtroom and to establish procedural 'rules. See State ex rel. Bliss v. Greenwood, 63 N.M. 156, 161-62, 315 P.2d 223, 227 (1957) (noting that courts have inherent power to hold non-compliant \"witnesses in contempt); Ammerman, 89 N.M. at 309-12, 551 P.2d at 1356-59 (stating that courts have power over certain privileges as matters of evidence). A long line of cases in this state support the proposition that the control of testimony is a judicial prerogative. See Brown, 1998-NMSC-037, \u00b6 61, 126 N.M. 338, 969 P.2d 313; Greenwood, 63 N.M. at 162, 315 P.2d at 227 (noting and discussing the contempt power of courts); Albuquerque Rape Crisis Ctr., 2005-NMSC-032, \u00b6 34, 138 N.M. 398, 120 P.3d 820 (Bosson, C.J., dissenting) (\u201cThe decision to allow someone not to give testimony, and the balancing of policy considerations implicit in such a decision, goes to the heart of judicial authority.\u201d); Rule 11-501 NMRA (stating that \u201cno person has a privilege to ... refuse to be a witness ... [or] refuse to disclose any matter\u201d except as provided by constitution or court rules).\n{34} Some of our cases even suggest that the control of court rules on evidence and procedure is an exclusive judicial power, and that the Legislature has no role. See Ammertnan, 89 N.M. at 312, 551 P.2d at 1359. While we have recently tempered our reliance on this theory of judicial exclusivity, see Albuquerque Rape Crisis Ctr., 2005-NMSC-032, \u00b6 5, 138 N.M. 398, 120 P.3d 820, this Court has always been understood to govern its own decisions on procedure, pleading and other core judicial functions. See Michael B. Browde & M.E. Occhialino, Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Constraints, 15 N.M. L.Rev. 407 (1985) (charting an increasingly court-centered power over rules of procedure and pleading, but also noting, at 427, that New Mexico had, at least until the 1930\u2019s, a \u201clong tradition of shared responsibility for rule-making\u201d).\n{35} In conclusion, New Mexico use immunity law, unlike its federal counterpart, is a creature of the courts, and therefore amenable to judicial change. By virtue of our decisional law, as well as this Court\u2019s superintending control, we have more latitude than those courts which have addressed this issue in other jurisdictions. And at the risk of overstating the obvious, our Legislature has not expressed any views, contrary or otherwise, on use immunity at trial and on the role of the prosecutor. Therefore, in exercising our \u201cultimate rule-making authority\u201d over procedure and pleading, Albuquerque Rape Crisis Ctr., 2005-NMSC-032, \u00b6 5, 138 N.M. 398, 120 P.3d 820, we have no doubt that this Court has the authority to permit district courts to grant use immunity in limited circumstances with or without the concurrence of the prosecutor.\n{36} To the extent our precedents hold differently, they are no longer persuasive for all the reasons discussed herein, and we overrule them on that point of law. For example, in both Cheadle, 101 N.M. at 286-87, 681 P.2d at 712-13, and Baca, 1997-NMSC-045, \u00b6 37, 124 N.M. 55, 946 P.2d 1066, we did not discuss the important distinction between federal law and our own jurisprudence, or for that matter the vital difference between use immunity and testimonial immunity. Instead, both cases appeared to conclude, based on the federal model, and without much analysis or discussion, that prosecutorial control over the immunity process could not be altered absent constitutional or statutory authority. As we have explained, our prior adherence to the federal paradigm and its grant of prosecutorial control over use immunity no longer withstands critical analysis. We overrule both cases with respect to that conclusion, holding that our courts do have the authority to grant a witness use immunity under certain limited circumstances.\n{37} Ironically, the Court of Appeals opinion in Sanchez, 98 N.M. 428, 649 P.2d 496, that preceded Cheadle, 101 N.M. 282, 681 P.2d 708, and Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066, is in accord with today\u2019s opinion, to the extent that it implicitly recognized our judiciary\u2019s independent authority to alter immunity rules, a power not granted to federal courts. However, the Sanchez Court determined that this distinction with federal law \u201cdoes not warrant adoption here of a different result\u201d from that followed by federal jurisdictions and continued to honor the prosecutor\u2019s control over the immunity process. Sanchez, 98 N.M. at 433, 649 P.2d at 501. Today we come to a different conclusion about whether to follow federal practice, but we draw comfort from the Sanchez Court\u2019s earlier recognition that ultimately the decision to follow federal authority is ours alone to make. Accordingly, we overrule Sanchez as to its ultimate conelusion. We also hereby amend Rule 5-116 to delete the words \u201cupon the written application of the prosecuting attorney,\u201d and refer the matter to the Rules of Criminal Procedure Committee for further review.\n{38} In order to guide district courts seeking to determine whether court-granted immunity is appropriate, we establish the following overview for such determinations, which also incorporates the applicable elements of Rule 5-116 and Rule 11-412. Before granting use immunity to a defense witness over the opposition of the prosecution, district courts should perform a balancing test which places the initial burden on the accused. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant\u2019s need for the testimony against the government\u2019s interest in opposing immunity. A court cannot determine whether a judicial grant of use immunity is necessary \u201cwithout assessing the implications upon the Executive Branch.\u201d Turkish, 623 F.2d at 776. In opposing immunity, the State must demonstrate a persuasive reason that immunity would harm a significant governmental interest. If the State fails to meet this burden, and the defendant has already met his burden, the court may then exercise its informed discretion to grant use immunity which our appellate courts would review for abuse of discretion.\nApplication to the Present Case\n{39} Because the present case came to us before it went to trial, the record is underdeveloped. But at least two important aspects of the case appear to be clear enough. The first is that the State\u2019s explanation of why it refused to grant D.P. use immunity is unpersuasive and practically non-existent. The second is that Defendant\u2019s ability to present an effective defense arguably may suffer if he is unable at least to explore D.P.\u2019s testimony. We cannot rule out at this point that D.P.\u2019s testimony may be material to Defendant\u2019s theory of the case. We leave it to the district court on remand to pursue this issue at greater length. We do not restrict the court\u2019s ability on remand to decide anew whether use immunity is ultimately essential to Defendant in this particular case and, if so, whether to grant use immunity to D.P. All we decide, at this juncture, is that the district court has the power to consider the grant of use immunity under the circumstances. Because of the lack of a developed record, we also cannot say at this juncture which of D.P.\u2019s constitutional rights, if any, may be imperiled. We leave it to the district court to consider, in light of further fact-finding, whether it is the Sixth Amendment rights of confrontation or compulsory process, or simply the broader Fourteenth Amendment right to a fair trial. We further note that immunity for the purposes of an in-camera interview is not necessarily the same as immunity for purposes of trial. That is, a district court\u2019s decision to grant immunity for the purpose of understanding what the witness\u2019s testimony at trial will be, does not bind that court to a grant of immunity at trial. The two decisions are separate. Immunity for one purpose does not equate to immunity for the other.\n{40} As for the State\u2019s refusal to grant immunity, the prosecution asserted that it had no intent to charge D.P. but, nonetheless, refused to apply for immunity. The State declined, not because prosecutors had any intention of pursuing further charges, or because they believed a ease might later arise against D.P., or because they believed the general interests of justice would be advanced. The State appears to have refused to grant immunity simply because it did not want to and opposed anyone deciding differently.\n{41} The prosecution\u2019s stated rationale was twofold. First, the State asserted that D.P. had no valid Fifth Amendment right because the case against D.P. had already been adjudicated and the State had no plans to pursue further charges. Second, the prosecution asserted \u201cthe general principle\u201d that the State should not be \u201cforced to grant immunity every time the defense request[s] it.\u201d The State invoked the possibility of a \u201cflood gate\u201d opening to \u201cevery Tom, Dick and Harry coming into this system and saying, well, you need to grant me immunity.\u201d\n{42} The first claim is as circular as it is unpersuasive. If the prosecutor truly had no plans to prosecute, and could foresee no set of facts in which Defendant might be prosecuted, then the State stands to lose very little by granting D.P. use immunity.\n{43} To successfully assert a Fifth Amendment privilege, a witness must have \u201creasonable cause to apprehend danger from a direct answer\u201d of a question. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Further, the danger of prosecution must be \u201creal and appreciable.\u201d Brown v. Walker, 161 U.S. 591, 599, 16 S.Ct. 644, 40 L.Ed. 819 (1896). But the Fifth Amendment right against self-incrimination does not vanish merely because the prosecution claims it will not prosecute. See United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983) (\u201cOnce the court determines that the answers requested would tend to incriminate the witness, it should not attempt to speculate whether the witness will in fact be prosecuted.\u201d). It is broadly recognized that, barring a number of well-defined exceptions, the failure to invoke the Fifth Amendment waives its protections. See United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943). The fact that a prosecutor has promised not to prosecute would not change this analysis, possibly barring some sort of contractual agreement the likes of which are absent in this case. Furthermore, it is clear that there are many charges that could reasonably result from revelations made by D.P. in his testimony, and the district court so found.\n{44} The second basis for the prosecutor\u2019s refusal reveals the hazards of giving the State sole and essentially unchecked control over immunity determinations. The assertion that use immunity should not be granted in D.P.\u2019s case because of \u201cthe general principle\u201d that it would encourage others to seek immunity is no justification at all in Defendant\u2019s particular case. Carried to its logical conclusion, it would mean there is essentially never an appropriate time for use immunity. This highlights the fundamental problem with the current rule: it puts the prosecution in control of critical constitutional rights of the accused, while excluding the moderating influence of an impartial judiciary.\n{45} It is true that prosecutors have a duty to serve the broad interests of justice by ensuring the integrity and fairness of the criminal justice system, and not just tally up convictions. See State v. Cooper, 2000-NMCA-041, \u00b6 15, 129 N.M. 172, 3 P.3d 149 (\u201cThe sole duty of a prosecutor is to see that justice is done.\u201d); State v. Brule, 1997-NMCA-073, \u00b6 18, 123 N.M. 611, 943 P.2d 1064 (\u201cThe prosecutorial role is to pursue a charging pattern that reconciles the community interest in proper enforcement of the law and the interest, shared by the community and the defendant, in fairness to the defendant.\u201d), rev\u2019d on other grounds, 1999-NMSC-026, \u00b6 15, 127 N.M. 368, 981 P.2d 782. But prosecutors are also, by definition, partisan combatants in our adversarial system. It has always been the role of courts in this system to mediate this kind of conflict between the prosecution and the defense.\n{46} The State\u2019s grounds for refusing immunity here are notably weaker than prior justifications in our other immunity cases. In Sanchez, 98 N.M. at 431, 649 P.2d at 499, the defendant, an alleged car thief, proposed to put on the stand a man who would testify that it was he, the witness, and not the defendant who committed the crime. The district court refused to grant use immunity, and the Court of Appeals affirmed. Unlike the State in the present case, prosecutors in Sanchez had a clear and undeniable desire to prosecute the proposed defense witness for the underlying crime if the jury believed his testimony. In the present case, the witness is not confessing to any part in the crime for which Defendant is charged, and the State claims no interest in prosecuting the witness even for perjury.\n{47} In Cheadle, 101 N.M. at 286-87, 681 P.2d at 712-13, a murder defendant proposed to put on the stand a witness who would testify that the accused was with him, the witness, the night of the murders. The district court refused to grant immunity to the proposed witness, and this Court affirmed. Id. at 287, 681 P.2d at 713. The State\u2019s reasons for rejecting immunity were more compelling than in the present case. If the defense witness testified as proffered, the State would have a legitimate interest in prosecuting the witness for harboring a fugitive.\nFoundations of the Majority Immunity Rule\n{48} In coming to the decision we announce today, we are not unmindful of the policy concerns raised in other forums against allowing courts to grant immunity without the concurrence of the prosecution. We address the principal concerns and our reasons for taking a different view. Underlying all of these concerns is a fear about the judiciary encroaching on the authority of the legislative and executive branches.\nSeparation of Powers\n{49} The fundamental concern about giving courts unilateral authority to grant use immunity is that doing so invades the province of either the legislative branch, the executive branch, or both. See, e.g., United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir.1990). The roots of these fears run deep. As the United States Supreme Court noted in detail in Kastigar, 406 U.S. at 443, 92 S.Ct. 1653, immunity statutes are a tradition spanning more than two centuries of Anglo-American jurisprudence. Such statutes generally grant the power of immunity to prosecutors, not to courts.\n{50} As we have previously discussed, in the instance of transactional immunity we agree that separation-of-powers concerns resonate deeply, because transactional immunity amounts to a decision not to prosecute at all. The decision to grant this broad and sweeping immunity is one which courts are not well-suited to make. See Brown, 1998-NMSC-037, \u00b6 59, 126 N.M. 338, 969 P.2d 313. Furthermore, the determination of whom and when to prosecute, while not entirely exempt from judicial review, lies nonetheless at the heart of the prosecutor\u2019s powers. See State v. Ogden, 118 N.M. 234, 240-41, 880 P.2d 845, 851-52 (1994); see also Boone v. Kentucky, 72 Fed.Appx. 306, 307 (6th Cir. 2003) (noting that absolute immunity extends to a prosecutor\u2019s decision \u201con whether to prosecute a case\u201d).\n{51} There are good reasons for prosecutors to decide unilaterally whom to prosecute, as well as when and when not to prosecute. Many courts, federal and state, have amply expressed these reasons. See, e.g., United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965); Application of Hassan v. Magistrates Court of New York, 20 Misc.2d 509 513-14, 191 N.Y.S.2d 238 (1959); Murphy v. Sumners, 54 Tex.Crim. 369, 370, 112 S.W. 1070 (1908).\n{52} According to the federal rule, courts are essentially powerless to consider the constitutional rights of a defendant in the case of immunity for defense witnesses. See, e.g., Turkish, 623 F.2d at 773-74. Although this is the majority position, it is nonetheless an extreme one. It is rare in criminal jurisprudence that a court is completely foreclosed from enforcing or protecting the constitutional rights of the accused. The anomaly is particularly striking in the instance of use immunity, which is much more akin to a classic judicial function than is the granting of transactional immunity.\n{53} We fully acknowledge that the imposition of use immunity, though less burdensome to prosecutors than transactional immunity, may still pose significant challenges to the prosecution. District courts considering whether to grant use immunity should seriously consider these difficulties. Under traditionally recognized use immunity rules, the government retains a \u201cheavy burden\u201d to show that its case against an immunized witness is not derived from the immunized testimony. Kastigar, 406 U.S. at 461, 92 S.Ct. 1653. Furthermore, a prosecutor may feel compelled to curtail cross-examination of a witness granted use immunity, in order to limit the potential universe of testimony that the witness can later claim was used in a subsequent prosecution. We recognize that these concerns are real, and that the burden on prosecutors even for use immunity can be substantial. See State v. Vallejos, 118 N.M. 572, 577, 883 P.2d 1269, 1274 (1994) (stating that in order to carry its burden, the State must present evidence, not just argument, and must make a preponderance showing). We have previously noted that when the State grants use immunity, it runs a \u201cgrave risk\u201d that the future prosecution of an immunized witness for past crimes \u201cmay, as a practical matter, be impossible.\u201d Id. at 580, 883 P.2d at 1277 (internal quotation marks and citation omitted); see also United States v. North, 910 F.2d 843, 862 (noting that, when a witness is granted use immunity, the government \u201cis taking a great chance that the witness cannot constitutionally be indicted or prosecuted\u201d), opinion withdrawn and superseded in part on reh\u2019g, 920 F.2d 940 (D.C.Cir.1990).\n{54} However, we also recognize that prosecutors deal regularly with use immunity rules, and are more than capable of successful prosecutions despite them. See, e.g., State v. Olivas, 1998-NMCA-024, \u00b67, 124 N.M. 716, 954 P.2d 1193 (rejecting defendant\u2019s argument that prosecution used immunized statements in violation of Kastigar). This Court has established certain guidelines for separating immunized testimony from other evidence, see Vallejos, 118 N.M. at 577-78, 883 P.2d at 1274-75, and clear rules are also available elsewhere. See U.S. Attorneys\u2019 Manual, U.S. Department of Justice, Criminal Resource Manual \u00a7 726, Steps to Avoid Taint (1997), available at http://www. usdoj.gov/usao /eousa/foiam-eading_room/usam/title9/crm00726.htm. We are confident that our state\u2019s district attorneys can and will produce similar guidelines for defense witnesses. Under the balancing test, we announce today, prosecutors have ample opportunity to argue to district courts that the burdens of use immunity would so hinder their ability to prosecute that they outweigh whatever interest the defendant may have in obtaining witness immunity. Ultimately, the trial court will have to decide on a case-by-case basis.\nClogging the Courts\n{55} In its briefing before this Court, as well as its argument to the district court, the State justified its refusal to grant immunity, in part, on fears that granting immunity would open the \u201cfloodgate\u201d to defense witnesses demanding immunity for their testimony. As a result of today\u2019s opinion, district courts may see an increase in requests for defense witness immunity, but a desire for efficiency is no reason to withhold testimony which could provide essential constitutional protection to defendants. A desire for judicial expediency provides no excuse to shortchange a defendant in his quest for constitutional protection. See United States v. McIver, 688 F.2d 726, 731 (11th Cir.1982) (noting the \u201cfutility of attempting to substitute efficiency for constitutional requirements of due process\u201d). Furthermore, we have long noted that district courts have supervisory control over the proceedings before them, and are fully capable of quickly dispatching meritless arguments. See Pizza Hut of Santa Fe, Inc. v. Branch, 89 N.M. 325, 327, 552 P.2d 227, 229 (Ct.App.1976) (\u201c[W]e have held that trial courts have supervisory control over their dockets and inherent power to manage then-own affairs so as to achieve the orderly and expeditious disposition of cases.\u201d). With these well-established principles, courts will be able to prevent needless and time-consuming mini-trials over the issue of witness immunity.\n\u201cImmunity Baths\u201d\n{56} Grants of immunity, whether made by prosecutors or by the courts, are inherently subject to abuse by witnesses. A witness may lie, or alter his testimony, in order to receive immunity. In the ease of defense witness immunity, the risk is in some senses two-fold. For example, a friend of the accused may testify falsely under an immunity grant, stating that he, and not the accused, is guilty of the crime. Confused thereby, the jury may be unable to decide to convict beyond a reasonable doubt. With the grant of immunity, the prosecution may be left without a case, and the real perpetrator, either one in this hypothetical scenario, is never held accountable. Some courts have described this so-called \u201cimmunity bath\u201d technique as a basis for not permitting judicially granted immunity. See, e.g., In re Kilgo, 484 F.2d 1215, 1222 (4th Cir.1973).\n{57} We recognize the concern is legitimate. However, where the issue is use immunity alone, and not transactional immunity, the concern largely, though not entirely, diminishes. The incentive for a witness to lie in exchange for mere use immunity is small. In the ease of transactional immunity, the lying witness can secure for himself freedom from prosecution for a series of events in which he may have been involved. With use immunity, such a witness receives virtually nothing in return for his lie. The prosecution does not promise to refrain from prosecuting for the events described, but only for the testimony itself. Furthermore, use immunity does not protect against prosecution for perjury. See Rule 11^412 (stating that evidence or testimony obtained after a grant of use immunity may not be used against a person compelled to testify, \u201cexcept a prosecution for perjury committed in the course of the testimony\u201d).\n{58} And yet the incentive for prosecutors to grant defense witness immunity is small. Given the certainty that such testimony cannot help a prosecutor\u2019s ease, it is not surprising that prosecutors grant immunity to defense witnesses only sparingly, if at all. The United States Department of Justice as a matter of policy mandates that prosecutors will not grant immunity to defense witnesses \u201cexcept in extraordinary circumstances where the defendant plainly would be deprived of a fair trial.\u201d U.S. Attorneys\u2019 Manual, available at http://www.usdoj.gov/usao/ eousa/foia-reading_room/usam/title9/ 23mcrm.htm# 9-23.214. We found no cases mentioning such a grant, while immunity grants to State witnesses are legion. See, e.g., Vallejos, 118 N.M. at 574, 883 P.2d at 1271; Brown, 1998-NMSC-037, \u00b6\u00b6 5-10, 126 N.M. 338, 969 P.2d 313, State v. Lunn, 82 N.M. 526, 529, 484 P.2d 368, 371 (Ct.App. 1971) (discussing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)).\n{59} While the justifications for vesting immunity power solely in the prosecution are strong, particularly in the federal system, they are weaker under New Mexico law. As we have discussed, the policy grounds for sole prosecutorial authority on this issue are persuasive for transactional immunity, but much less so for use immunity \u2014 a distinction which our case law in the past has failed to fully make. In asking our district courts to balance the various needs and rights with respect to use immunity, we are merely asking them to do what they do with many issues in nearly every phase of a criminal trial: mediate between the defendant and the State. This is the kind of decision district courts are well-suited to make. The constitutional stakes are high enough in the instance of use immunity that the court should have some role. In short, we conclude that while the reasons for unfettered prosecutorial control over use immunity are in some instances strong, they do not overcome the need for judicial intervention in every case.\nCONCLUSION\n{60} We reverse the Court of Appeals and remand to the district court to apply the new rule and balancing test we announce today. Our holding in this case applies prospectively and to all pending cases which have not yet gone to trial as of the date of this Opinion. See Pieri, 2009-NMSC-019, \u00b6\u00b6 25-26, 146 N.M. 155, 207 P.3d at 1140.\n{61} IT IS SO ORDERED.\nWE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and CHARLES W. DANIELS, Justices.\n. Our research indicates that Sanchez, Cheadle or Baca, and sometimes all three, have been cited with some frequency for the proposition that New Mexico courts have no independent authority to grant use immunity to witnesses. See McGee v. Crist, 739 F.2d 505, 508-09 (10th Cir. 1984); State v. Saiz, 2008-NMSC-048, \u00b6\u00b6 50-51, 144 N.M. 663, 191 P.3d 521; State v. Saavedra, 103 N.M. 282, 286, 705 P.2d 1133, 1137 (1985); Crislip, 110 N.M. at 415, 796 P.2d at 1111.\n. This Court generally carries out the specific wording of rule changes by way of rules committees, and we can see no reason to depart from that custom here. We therefore leave it to the Committee to determine the particulars of how Rule 5-116 should be worded.\n. In noting the relative strength of the defense witness\u2019s arguments in these cases, we do not purport to pre-determine the outcome of any future cases with facts similar to Sanchez or Cheadle. Because of the fact-intensive and case-specific analysis which the district court must carry out in determining whether to grant defense witness immunity, it is of course impossible to anticipate how the principles announced today will play out in any given set of facts.", "type": "majority", "author": "BOSSON, Justice." } ], "attorneys": [ "Hugh W. Dangler, Chief Public Defender, Nancy M. Hewitt, Appellate Defender, Santa Fe, NM, for Petitioner.", "Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Respondent." ], "corrections": "", "head_matter": "2009-NMSC-025\n210 P.3d 783\nSTATE of New Mexico, Plaintiff-Respondent, v. Isaac BELANGER, Defendant-Petitioner.\nNo. 30,654.\nSupreme Court of New Mexico.\nMay 12, 2009.\nRehearing Denied June 15, 2009.\nHugh W. Dangler, Chief Public Defender, Nancy M. Hewitt, Appellate Defender, Santa Fe, NM, for Petitioner.\nGary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Respondent." }, "file_name": "0357-01", "first_page_order": 387, "last_page_order": 401 }